J-S62038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

MIKAIL TALIB HANDY

                            Appellant                  No. 1 MDA 2016


            Appeal from the Judgment of Sentence August 25, 2015
              In the Court of Common Pleas of Lycoming County
             Criminal Division at No(s): CP-41-CR-0002025-2014


BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                       FILED AUGUST 18, 2016

        Appellant, Mikail Talib Handy, appeals from the judgment of sentence

entered in the Lycoming County Court of Common Pleas, following his jury

trial convictions of possession with intent to deliver (“PWID”), delivery of a

controlled substance, simple possession, and criminal use of communication

facility.1 We affirm.

        The relevant facts and procedural history of this case are as follows.

On August 8, 2014, a confidential informant (“CI”) used a cell phone to

arrange a purchase of cocaine. A state trooper drove the CI in an unmarked

vehicle to a rendezvous point and provided the CI with $200.00 cash. The

CI subsequently exited the vehicle and entered a white Chevrolet Impala
____________________________________________


1
    35 P.S. §§ 780-113(a)(30), (a)(16); 18 Pa.C.S.A. § 7512(a), respectively.
J-S62038-16


with tinted windows driven by Appellant.        After a few minutes, the CI

emerged from the Impala and handed cocaine to the police.       The CI later

identified Appellant by photo array as the driver of the Impala and the

person who had sold her the cocaine. On October 25, 2014, police arrested

Appellant with $644.00 in cash, a Chevrolet key fob, and two cell phones;

one of the cell phone numbers matched the number the CI had used to

arrange the drug purchase.

       On June 2, 2015, a jury convicted Appellant of PWID, delivery of a

controlled substance, simple possession, and criminal use of communication

facility.   The trial court sentenced Appellant on August 25, 2015, to an

aggregate term of eighteen (18) months’ to five (5) years’ incarceration. On

September 2, 2015, Appellant, with new counsel, filed a motion for

extension of time to file a post-sentence motion, which the court granted.

On October 13, 2015, Appellant timely filed a post-sentence motion.     The

court denied Appellant’s post-sentence motion on December 3, 2015.

Appellant timely filed a notice of appeal on December 30, 2015. On January

4, 2016, the trial court ordered Appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b); Appellant

timely complied on January 21, 2016.

       Appellant raises the following issues on appeal:

            THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE
            BECAUSE THE COMMONWEALTH’S EVIDENCE DID NOT
            IDENTIFY…APPELLANT AS THE ACTOR.


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J-S62038-16


         THE EVIDENCE SUBMITTED AT…APPELLANT’S TRIAL IN
         THIS MATTER WAS INSUFFICIENT TO MEET THE
         COMMONWEALTH’S      BURDEN      OF     PROVING
         THAT…APPELLANT WAS THE ACTOR FOR EACH OFFENSE
         CHARGED IN THE INFORMATION BEYOND A REASONABLE
         DOUBT.

(Appellant’s Brief at 7).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Dudley N.

Anderson, we conclude Appellant’s issues merit no relief.     The trial court

opinion comprehensively discusses and properly disposes of the questions

presented.    (See Trial Court Opinion, filed December 3, 2015, at 1-4)

(finding: (1) to extent Appellant attempted to impeach CI’s testimony, that

testimony was corroborated by other witnesses; guilty verdict was not

contrary to evidence and did not shock one’s sense of justice; (2)

Commonwealth presented audio recordings and testimony of CI, four state

troopers, and one city police officer; CI testified that she arranged over

phone conversation to buy cocaine from Appellant, police drove CI in

unmarked vehicle to meeting location, she met with Appellant in white

Chevrolet Impala, and she purchased cocaine from Appellant; state trooper

who transported CI confirmed CI’s story, and also testified that CI identified

Appellant in photo array; second state trooper in backseat of police vehicle

confirmed CI’s story; third trooper testified that while he was surveilling

residence, he observed Appellant leave residence and drive away in white

Chevrolet Impala minutes before drug transaction occurred; fourth trooper

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J-S62038-16


testified that on date of incident, he followed white Chevrolet Impala and

subsequently observed Appellant exit vehicle; city police officer testified that

Appellant possessed two cell phones and $644.00 in cash at time of arrest;

prison audio recordings of Appellant after his arrest revealed he told his

fiancée he had been “hustling”; another witness explained “hustling” meant

selling   drugs;   evidence   was   sufficient   to   sustain   all   of   Appellant’s

convictions). Accordingly, we affirm on the basis of the trial court opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/18/2016




                                      -4-
                                                                   Circulated 08/05/2016 03:35 PM




IN THE COURT OF COMMON PLEAS OF LYCOMING COUNTY, PENNSYLVANIA

COMMONWEAL TH OF PENNSYLVANIA                          NO. CR-2025 -2014 /

        vs.

MIKAIL HANDY,
     Defendant                                                               .
                                                                                 ... .. ..;.. •..:.....,.
                                                                                                   ~;:.,



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                   OPINION IN SUPPORT OF ORDER OF DECEMBER'~W.5,                                            .i:

                          IN COMPLIANCE WITH RULE 1925(A) OF·~i;:PJ                                         _;;
                         THE RULES OF APPELLATE PROCEDURE,           m                                      °"

        In response to Defendant's Statement of Matters Complained of on Appeal, filed
January 21, 2016, as the issues raised therein are those which were raised in Defendant's Post-
Sentence Motion, the Court chooses to rely on the Opinion and Order entered in disposing of
that motion, dated December 3, 2015.




Dated: ·?._ -     \ - '\ k,                  Respectfully submitted,


                                             \ ·\. J ~~~~
                                             Dudle~. Anderson, Judge




cc:   Jistrict     Attorney

      ~n.        Dudley N. Anderson


                                                                                                                  /-.
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                                                                                                                      '7
IN THE COURT OF COMMON PLEAS OF LYCOMING COUNTY, PENNSYLVANIA

COMMONWEAL TH OF PENNSYLVANIA                  : NO. CR- 2025 - 2014             /

      vs.                                      : CRIMINAL DIVISION

MIKAIL HANDY,
          Defendant
                                                                                           .   -~_.,
                                                                                           .,~. •.1



                                                                                      I
                                                              .~_"'! .?:             Lv        .)      ;.~:=
                             OPINION AND ORDER                r:-->'< · .'                ...... rn
                                                              ' r». - ,          ;:g      ; ..~CJ
                                                              ~ili '.~~:i f(     r-.)     :E
      Before the Court is Defendant's Post-Sentence MotiQIJ;l~~d ~tob~~ 13,
                                                                           !.,   -        -<
2015. Argument was scheduled for November 17, 2015, but just prior to the time
for argument, counsel agreed to have the court rule on the motion based on the
motion only.
      After a jury trial on June 2, 2015, Defendant was convicted of one count
each of possession with intent to deliver crack cocaine, delivery of crack cocaine,
possession of crack cocaine and criminal use of a communication facility. On
August 25, 2015, Defendant was sentenced to 18 months to five years
incarceration for possession with intent to deliver, and a concurrent term of 6
months to two years incarceration for criminal use of a communication facility.
The other two charges were held to merge for sentencing purposes.                In his Post-
Sentence Motion, Defendant contends there was insufficient evidence to support
the verdict, that the verdict was against the weight of the evidence, and that the
sentence was excessive.
      In addressing a challenge to the sufficiency of the evidence, the court is to
view all of the evidence admitted at trial in the light most favorable to the
Commonwealth as verdict winner, and the verdict will be upheld if there is
sufficient evidence to enable the fact-finder to find every element of the crimes
charged beyond a reasonable doubt. Commonwealth v. Adams, 882 A.2d 496 (Pa
Super. 2005). A "weight of the evidence" claim contends the verdict is a product
of speculation or conjecture, and requires a new trial only when the verdict is so
contrary to the evidence as to shock one's sense of justice. Commonwealth v.
Dougherty, 679 A.2d 779 (Pa. Super. 1996).
       At trial, the Commonwealth presented the testimony of a confidential
informant, four state troopers and a city police officer, as well as audio recordings
of two conversations Defendant had while in the county prison after his arrest.
       The confidential informant testified that on August 8, 2014, she arranged
over the telephone to buy cocaine from a certain person, that a state trooper
transported her that day to the proposed location and provided her with buy
money, that she met with someone in a white Chevy Impala (identified by her at
trial to be the defendant), provided him with the money and received from him
· two bags of crack cocaine, and then returned to the trooper's vehicle and provided
him with the drugs.
       The trooper who transported the informant to the buy location confirmed
the informant's testimony regarding having transported her that date and provided
her with buy money, and testified further that he observed her getting into the
white Chevy Impala, and then observed her returning to his vehicle and that she
then provided him with two bags of crack cocaine. He also testified that when he
 presented her with a photo array about a month later, she identified the defendant
 as the person who had sold her the drugs on that date.
       A second trooper testified that he had been in the back seat of the vehicle
 which transported the informant to the buy location on the date on question, that
 he observed a white Chevy Impala, observed the informant get into the Impala,



                                          2
observed the vehicle drive away and then seconds later, observed the informant
return to the car and tum over the drugs she had purchased.
         A third trooper testified that he had been surveilling a certain residence on
the date in question, that he observed the defendant go into and out of that
residence and then drive away in a white Chevy Impala, and that within three to
four minutes thereafter he was informed by the trooper involved in the controlled
buy that he and the informant were meeting with the person in that vehicle.
         A fourth trooper testified that on the date in question he observed the white
Chevy Impala and then followed it and observed the informant get out of the
Impala and walk toward the trooper's vehicle.
         A city police officer testified that he arrested Defendant based on the arrest
warrant issued by the State Police, and that at the time of arrest, Defendant had on
his person two cell phones and $644 in cash. One of the cell phones had the same
number that had been used by the informant to contact the person from whom she
purchased the cocaine on August 8, 2014.
         The audio recordings of two conversations Defendant had while in the
county prison after his arrest evidenced Defendant's statement to his fiance that
he had been "hustling", which was explained by another witness to refer to selling
drugs.
         Considering all of this evidence, the court finds there is sufficient evidence
of each of the elements of all of the crimes charged to support the jury's findings
of guilt: Defendant possessed crack cocaine with the intent to deliver it, he did
deliver it, and he used a cell phone to arrange the delivery.
         With respect to Defendant's claim that the verdict was against the weight
of the evidence, while defense counsel did attempt to raise an issue respecting the



                                             3
identity of the person from whom the informant purchased the cocaine, and also
attempted to impeach the informant's credibility by pointing out that she was
testifying for the Commonwealth in exchange for leniency with respect to
outstanding charges against her, and by highlighting her prior crimes of
dishonesty, as the informant's testimony was corroborated by others, the verdict
is not contrary to the evidence and certainly does not shock one's sense of justice.
        Finally, to address the claim that the sentence of 18 months to five years is
excessive, 1 the court is guided by the general principle that the sentence imposed
should be the minimum sentence consistent with the protection of the public, the
gravity of the offense, and the rehabilitative needs of the defendant. See
Commonwealth v. Hoag, 665 A.2d 1212 (Pa. Super. 1995). In this case, the
standard range for the offense, based on Defendant's prior record score of"5", is
12 to 18 months. The court sentenced Defendant to the top of the standard range
based on the fact that he had three previous felony drug convictions and thus a
lighter sentence would not serve to protect the public; it appears that Defendant
will simply continue to sell drugs once he is released based on his history.
Further, Defendant's conviction now, following those previous convictions,
indicates that any rehabilitative efforts have failed and would at this time serve no
purpose. Considering all the circumstances, the court believes the sentence
imposed was not excessive.




I
 The court will consider only this portion of the sentence as the other portion, the sentence of six months to two
years, is to run concurrent, and Defendant did not specify which of the two sentences he is addressing by his
motion. Therefore, the longer sentence will be considered as being the subject of the motion.


                                                          4
                                           ORDER

            AND NOW, this      3'.' J._day of December   2015, for the foregoing reasons,
Defendant's Post-Sentence Motion is hereby DENIED.




                                             BY THE COURT,




       ./
cc:     DA
      vpn
      -./
            yary Weber, Esq.
        vf-lon. Dudley Anderson


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