J-S11014-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

EZRA SPEAKS, JR.

                            Appellant                      No. 836 MDA 2014


            Appeal from the Judgment of Sentence March 25, 2014
              In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0005425-2012


BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                                  FILED APRIL 06, 2015

        Appellant, Ezra Speaks, Jr., appeals from the judgment of sentence

entered March 25, 2014, by the Honorable Richard A. Lewis, Court of

Common Pleas of Dauphin County.                We affirm Speaks’s convictions, but

vacate the judgment of sentence and remand for re-sentencing.

        For a detailed account of the underlying facts and procedural history in

this matter, we direct the reader to pages one through nine of the trial

court’s September 11, 2014, memorandum opinion.                 Briefly, the police

arrested Speaks after a confidential informant facilitated the controlled

purchase from Speaks of crack cocaine. Thereafter, a jury convicted Speaks

of delivery of a controlled substance,1 conspiracy to commit delivery of a

____________________________________________


1
    35 P.S. 780-113(a)(30).
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controlled substance,2 and criminal use of a communication facility.3       On

March 25, 2014, the trial court sentenced Speaks to an aggregate term of

three to six years’ imprisonment. Upon motion by the Commonwealth, the

court imposed a mandatory $10,000.00 fine pursuant to 18 Pa.C.S.A. §

7508(a)(2)(i), based upon the jury’s finding that Speaks had delivered an

amount of cocaine in excess of two grams.          Speaks filed a timely Post-

Sentence Motion to Preserve Issues and Motion for New Trial or Arrest of

Judgment, which the trial court denied following a hearing.        This timely

appeal followed.

        Speaks raises the following issues for our review.

        1. Whether the trial court erred in sentencing appellant to an
           illegal sentence where it sentenced appeallant [sic] to a
           mandatory minimum sentence pursuant [sic] to [18 Pa.C.S.A.
           § 7508(a)(2)(i)]?

        2. Whether the trial court erred in denying appellant’s post-
           sentence motion for arrest of judgment where the jury verdict
           of guilty on the charges of: unlawful deliver of a controlled
           substance, criminal conspiracy to unlawful delivery of a
           controlled substance and criminal use of a communication
           facility was against the weight of the evidence, because the
           Commonwealth failed to present testimony that an agent of
           the Attorney General’s office personally observed appellant
           deliver drugs for money; there was no video or photo
           surveillance that showed appellant made an unlawful delivery,
           and where the wiretap recording presented during trial was
           inaudible, such that a transcript needed to be provided to the
           jury so that they could understand what was being said?

____________________________________________


2
    18 Pa.C.S.A. § 903.
3
    18 Pa.C.S.A. § 7512(a).



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Appellant’s Brief at 5 (unnecessary capitalization and underlining removed).

        In his first issue on appeal, Speaks correctly notes that the trial court

imposed      a   mandatory   minimum     sentence    pursuant     to   18   Pa.C.S.A.

7508(a)(2)(i), based upon the jury’s finding that the cocaine involved in the

transaction exceeded 2.0 grams. As the parties and trial court are by now

aware, this Court has recently held that § 7508 is facially invalid pursuant to

the Supreme Court of the United States’ decision in Alleyne v. United

States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).                    See

Commonwealth v. Fennell, 105 A.3d 13 (Pa. Super. 2014).                          The

Commonwealth rightly concedes this issue in its brief. See Commonwealth’s

Brief   at   10.     Furthermore,    this   issue   cannot   be    waived.       See

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

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

vacate the judgment of sentence in its entirety and remand for re-

sentencing. See Commonwealth v. Goldhammer, 517 A.2d 1280, 1283-

1284 (Pa. 1986).

        Speaks additionally argues that the jury’s verdict was against the

weight of the evidence presented. Our standard of review is as follows:

        The finder of fact is the exclusive judge of the weight of the
        evidence as the fact finder is free to believe all, part, or none of
        the evidence presented and determines the credibility of the
        witnesses.

        As an appellate court we cannot substitute our judgment for that
        of the finder of fact. Therefore, we will reverse a jury’s verdict
        and grant a new trial only where the verdict is so contrary to the
        evidence as to shock one’s sense of justice. A verdict is said to

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     be contrary to the evidence such that it shocks one’s sense of
     justice when “the figure of Justice totters on her pedestal,” or
     when “the jury’s verdict, at the time of its rendition, causes the
     trial judge to lose his breach, temporarily and causes him to
     almost fall from the bench, then it is truly shocking to the
     judicial conscience.”

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

Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013)

(quoting Commonwealth v. Cruz, 919 A.2d 279, 281-82 (Pa. Super.

2007)) (citations omitted). It is up to the jury to weigh the evidence,

determine its credibility, and believe all, part, or none of it. See

Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa. Super. 2003).

     Instantly, the trial court specifically concluded that the “testimony of

the parties who personally observed the events of August 21, 2012 and

personally participated in the [controlled purchase] transaction is not so

unreliable or contradictory so as to shock the court’s sense of justice and

require the grant of a new trial.” Trial Court Opinion, 9/11/14 at 12.     In

light of the extensive corroborating evidence presented at trial and the

testimony of the drug task force agents and of the confidential information

who facilitated the drug transaction, as credited by the jury, we find no

abuse of discretion in the trial court’s conclusion.     See id. at 11-12.

Accordingly, Speaks’s weight of the evidence claim merits no relief.




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      Convictions affirmed. Judgment of sentence vacated. Case remanded

for   re-sentencing   consistent   with   this   memorandum.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2015




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