J-S64016-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                   v.

KEENAN DWAYNE FRYE,

                        Appellant                     No. 298 WDA 2014


    Appeal from the Judgment of Sentence Entered November 26, 2013
         In the Court of Common Pleas of Westmoreland County
           Criminal Division at No(s): CP-65-CR-0004269-2012


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J.

MEMORANDUM BY BENDER, P.J.E.:                       FILED OCTOBER 08, 2014

     Appellant, Keenan Dwayne Frye, appeals from the judgment of

sentence of a mandatory minimum term of five years’ incarceration, imposed

after he was convicted of various drug and firearm related offenses.        On

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

sustain his convictions. While we conclude those arguments are meritless,

we are nevertheless compelled to sua sponte deem Appellant’s mandatory

sentence illegal under this Court’s recent decision in Commonwealth v.

Newman, 2014 WL 4088805 (Pa. Super. 2014) (en banc). Accordingly, we

vacate Appellant’s judgment of sentence and remand for resentencing.

     Appellant   was    arrested    and   charged    with   attempted   murder,

aggravated assault, recklessly endangering another person (REAP), carrying

a firearm without a license, possession with intent to deliver a controlled
J-S64016-14



substance (PWID), possession of drug paraphernalia, and possession of a

controlled substance. At Appellant’s jury trial,

             [t]he Commonwealth’s evidence … established that on
      October 17, 2012, Joshua Grimm arranged to meet [Appellant],
      Kennan Frye, at a location in Mount Pleasant, Westmoreland
      County, Pennsylvania. The purpose of this meeting, according to
      Grimm, was to fight [Appellant] because [Grimm] believed
      [Appellant] had assaulted a family member. [Grimm] testified
      that he set up this meeting on the pretense that he was going to
      buy marijuana from [Appellant]; however, as Grimm also
      testified, he never intended to really buy the marijuana from
      [Appellant]. Accompanied by four friends, Grimm went to the
      arranged location and met with [Appellant]. His friends hid
      themselves nearby while Grimm met [Appellant] and engaged in
      conversation. [Appellant] handed Grimm what Grimm believed
      to be a bag of marijuana, and Grimm initiated a fight with
      [Appellant] by spraying him with pepper spray. Grimm admitted
      that he and [Appellant] struggled and Grimm knocked
      [Appellant] down onto his back.        As Grimm stood above
      [Appellant], warning [Appellant] not to “put his hands” on
      Grimm’s family, Grimm saw the muzzle of a gun and then saw
      gunfire from [Appellant’s] waistline and realized that he had
      been shot. He ran back to his friends, shouting that he had been
      shot.     Grimm was treated at Frick Hospital and UPMC in
      Pittsburgh for his gunshot wounds, and has made a full recovery.

             [Appellant] fled the area of the incident immediately after
      the shooting. Pennsylvania State Trooper Matthew Hartman
      testified that he was dispatched on October 17, 2012[,] at the
      beginning of his shift at approximately 11:00 p.m. to Mount
      Pleasant to respond to a reported shooting. After speaking with
      Officer Zilli of the Mount Pleasant Police Department, Trooper
      Hartman went to [Appellant’s] mother’s apartment in an attempt
      to locate him. Although that initial attempt was unsuccessful,
      police did finally locate [Appellant], who was 18 years old,
      walking along Route 31 outside of Mount Pleasant Borough.
      Trooper Brian Pollock testified that he also responded to the
      dispatch, and he and his partner located [Appellant], who was
      dressed in dark clothing and [was] carrying a backpack.
      [Appellant] immediately raised his hands and said, “It’s in my
      backpack, it’s in my backpack.” Inside the backpack, Trooper
      Pollock found a five-shot revolver that was fully loaded. As

                                     -2-
J-S64016-14


     Trooper Pollock was examining the gun for safety, [Appellant]
     stated[,] “Be careful, there should be one live round in it.”
     When Trooper Pollock noted that the gun was fully loaded,
     [Appellant] stated, “I wasn’t sure if his friends were going to
     come after me.” During his cursory search of the backpack,
     Trooper Pollock also found what he believed to be bags of
     marijuana and ammunition. A more thorough search of the
     backpack was performed at a later time by Detective Timothy
     Sethman of the Westmoreland County Detective Bureau. In the
     backpack, Detective Sethman found a box containing 19 bullets
     (Winchester .28 Special 130 grain), a black nylon Uncle Mike’s
     holster, a purple Crown Royal bag containing two spent bullet
     casings, two separate bullet casings, [Appellant’s] Pennsylvania
     photo identification card, a digital scale, an opened box of clear
     plastic baggies, a zipper hooded Air Jordan jacket, and a clear
     plastic bag containing six individual clear plastic baggies of
     marijuana.2 Detective Anthony Marcocci testified as an expert in
     narcotic investigations and illegal drug sales. Det. Marcocci
     acknowledged that the weight of the marijuana did not preclude
     the possibility that [Appellant] could have possessed the
     marijuana for personal use. However, considering the amount of
     marijuana and the manner in which it was packaged, as well as
     the paraphernalia (the plastic baggies and digital scale) that was
     found in [Appellant’s] possession and which was located in close
     proximity to the marijuana, and finally the fact that [Appellant]
     was in possession of a gun, Det. Marcocci opined that
     [Appellant] possessed the marijuana with the intent to deliver it
     to another person or persons rather than for his own personal
     use.

     ______________________
     2
       The laboratory analysis of the vegetable material found in
     [Appellant’s] backpack found that the material was in fact
     marijuana and weighed 34.6 grams.

Trial Court Opinion (TCO), 4/2/14, at 2-4 (one footnote and citations to

record omitted).

     Based on this evidence, the jury acquitted Appellant of attempted

murder, aggravated assault, and REAP, but convicted him of the remaining

drug and firearm offenses with which he was charged. On October 3, 2013,

                                   -3-
J-S64016-14



the court sentenced Appellant to a mandatory term of 5 to 10 years’

incarceration for the PWID conviction under 42 Pa.C.S. § 9712.1.1 The court

also imposed a concurrent term of 1 to 2 years’ incarceration for Appellant’s

firearm offense, but no further penalty for his remaining convictions.       On

November 26, 2013, Appellant was resentenced for his PWID conviction to a

flat term of five years’ incarceration pursuant to section 9712.1 and


____________________________________________


1
    That statute states, in pertinent part:

       (a) Mandatory sentence.--Any person who is convicted of a
       violation of section 13(a)(30) of the act of April 14, 1972 (P.L.
       233, No. 64), known as The Controlled Substance, Drug, Device
       and Cosmetic Act, when at the time of the offense the person or
       the person's accomplice is in physical possession or control of a
       firearm, whether visible, concealed about the person or the
       person's accomplice or within the actor's or accomplice's reach
       or in close proximity to the controlled substance, shall likewise
       be sentenced to a minimum sentence of at least five years of
       total confinement.

       …

       (c) Proof at sentencing.--Provisions of this section shall not be
       an element of the crime, and notice thereof to the defendant
       shall not be required prior to conviction, but reasonable notice of
       the Commonwealth's intention to proceed under this section
       shall be provided after conviction and before sentencing. The
       applicability of this section shall be determined at sentencing.
       The court shall consider any evidence presented at trial and shall
       afford the Commonwealth and the defendant an opportunity to
       present any necessary additional evidence and shall determine,
       by a preponderance of the evidence, if this section is applicable.

42 Pa.C.S. § 9712.1(a), (c).



                                           -4-
J-S64016-14



Commonwealth v. Kleinicke, 895 A.2d 562 (Pa. Super. 2006) (en banc).”2

TCO at 1.      Appellant filed timely post-sentence motions, which the court

denied. He then filed a timely notice of appeal, as well as a timely concise

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

Herein, Appellant raises two questions for our review:

       I. Whether the evidence was insufficient to sustain the verdict[?]

       II. Whether      the    verdict   was     against   the   weight   of   the
       evidence[?]

Appellant’s Brief at 6.

       Before addressing these issues, we are compelled to sua sponte

address the legality of Appellant’s mandatory sentence of five years’

incarceration, imposed under 42 Pa.C.S. § 9712.1. See Commonwealth v.

Randal, 837 A.2d 1211, 1214 (Pa. Super. 2003) (stating “challenges to

‘[a]n illegal sentence can never be waived and may be raised sua sponte by

this Court’”). In this Court’s recent en banc decision in Newman, we held

that “the sentencing practice under Section 9712.1 is unconstitutional” in

light of Alleyne v. U.S., 133 S.Ct. 2151, 2160-2161 (2013) (holding that


____________________________________________


2
  The trial court was required to impose a 5-year sentence because that
term was mandated by 42 Pa.C.S. § 9712.1(a).            However, the court
recognized that to impose an indeterminate sentence of 5 to 10 years’
incarceration would have resulted in sentence that exceeded the statutory
maximum of 5 years’ imprisonment applicable to Appellant’s PWID
conviction. Therefore, relying on Kleinicke, the court imposed a flat 5-year
term of imprisonment.




                                           -5-
J-S64016-14



any fact that serves to aggravate the minimum sentence must be found by

the fact-finder beyond a reasonable doubt).3     Newman, 2014 WL 4088805

at *1, *10.        We also rejected the Commonwealth’s argument “that

Subsection (a) of Section 9712.1, which sets the predicate for the

mandatory minimum sentence, survives constitutional muster and that only

Subsection (c), which directs that the trial court shall determine the

predicate of Subsection (a) by a preponderance of the evidence, fails.” Id.

at *13. Instead, we held that “Subsections (a) and (c) of Section 9712.1 are

essentially and inseparably connected” and, therefore, the unconstitutional

portion of the statute could not be severed from the rest. Id.

       In light of Newman, it is clear that section 9712.1 is unconstitutional

as a whole and, thus, Appellant’s mandatory minimum sentence imposed

under that statute is illegal. Accordingly, we vacate Appellant’s judgment of

sentence for the PWID offense, and remand for resentencing without

consideration of any mandatory minimum sentence provided by section

9712.1.




____________________________________________


3
  Because both Alleyne and Newman were decided during the pendency of
Appellant’s direct appeal, they apply retroactively to his case.            See
Newman, 2014 WL 4088805, at *2 (noting the United States Supreme
Court’s holding that “[w]hen a decision of this Court results in a ‘new rule,’
that rule applies to all criminal case still pending on direct review”) (quoting
Schriro v. Summerlin, 542 U.S. 348, 351 (2004) (citation omitted)).




                                           -6-
J-S64016-14



       Despite our disposition in this regard, we will address Appellant’s

challenges to the sufficiency and weight of the evidence to sustain his

convictions. First,

       [i]n reviewing a sufficiency of the evidence claim, we must
       determine whether the evidence admitted at trial, as well as all
       reasonable inferences drawn therefrom, when viewed in the light
       most favorable to the verdict winner, are sufficient to support all
       elements of the offense. Commonwealth v. Moreno, 14 A.3d
       133 (Pa. Super. 2011). Additionally, we may not reweigh the
       evidence or substitute our own judgment for that of the fact
       finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
       2009). The evidence may be entirely circumstantial as long as it
       links the accused to the crime beyond a reasonable doubt.
       Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

       Here, Appellant avers that the evidence was insufficient to support his

PWID conviction because police did not discover in his possession any “large

amounts of money, owe sheets, cell phones, or an amount of drugs

consistent with distribution.”   Appellant’s Brief at 13.   He emphasizes that

the Commonwealth’s expert, Detective Marcocci, admitted that the quantity

of drugs discovered in Appellant’s possession could have been for personal

use.   Appellant also contends that “there is an absolute lack of evidence”

tying him to the backpack containing the drugs, and that “[t]here can be an

equal inference that the backpack was actually Grimm’s and [that Appellant]

grabbed it as he left the scene.” Id. at 13.

       Similarly, Appellant maintains that his conviction for possession of a

firearm without a license cannot be sustained because “there was no nexus



                                      -7-
J-S64016-14



between [Appellant] and this specific weapon[,]” and there was no physical

evidence tying Appellant to the gun.     Appellant’s Brief at 14.   Instead,

Appellant claims that the evidence suggested the gun belonged to Grimm.

Appellant further argues that his convictions for possession of a controlled

substance and possession of drug paraphernalia were not supported by

sufficient evidence because “there [was] no proof that the items were

possessed by [Appellant].” Id.

     Appellant’s arguments are clearly meritless.   First, there was ample

evidence to prove that Appellant possessed the backpack and its contents.

Namely, Appellant was wearing the bag on his back when police detained

him, his photo identification card was found inside, and when the police

approached him, he raised his hands and stated, “[I]t’s in my backpack, it’s

in my backpack.”   N.T. Trial, 7/9/13, at 132 (emphasis added).     The fact

that police found marijuana, a digital scale, and plastic baggies inside the

backpack was sufficient to prove that Appellant possessed a controlled

substance and drug paraphernalia. Additionally, a gun was discovered inside

Appellant’s backpack, and it was clear Appellant knew about the weapon

because he told police its location and informed them that it was loaded.

Thus, Appellant’s conviction for possessing a firearm without a license was

also supported by adequate evidence.

     In regard to Appellant’s PWID conviction, the discovery in Appellant’s

backpack of marijuana packaged into separate plastic baggies, more unused

plastic baggies, a digital scale, and a gun was compelling evidence.

                                   -8-
J-S64016-14



Moreover, while Detective Marcocci recognized that the total amount of

drugs could have been consistent with personal use, he ultimately opined

that it was possessed with intent to deliver in light of the drug paraphernalia

and Appellant’s possession of a gun. Grimm also testified that Appellant met

him in order to sell him marijuana. Based on the totality of this evidence,

the jury was able to conclude, beyond a reasonable doubt, that Appellant

committed PWID. See Commonwealth v. Jackson, 645 A.2d 1366, 1368

(Pa. Super. 1994) (stating that where the quantity of a controlled substance

does not make it clear whether it was possessed for personal use or

distribution, other factors to consider in determining whether defendant

intended to deliver the drugs include “the manner in which the controlled

substance was packaged, … the presence of drug paraphernalia, … [and]

expert opinion testimony” regarding “whether the facts surrounding the

possession of controlled substances are consistent with an intent to deliver

rather than with an intent to possess it for personal use”).

      Lastly, Appellant challenges the weight of the evidence to sustain his

convictions.

      A claim alleging the verdict was against the weight of the
      evidence is addressed to the discretion of the trial court.
      Accordingly, an appellate court reviews the exercise of the trial
      court's discretion; it does not answer for itself whether the
      verdict was against the weight of the evidence. It is well settled
      that the jury is free to believe all, part, or none of the evidence
      and to determine the credibility of the witnesses, and a new trial
      based on a weight of the evidence claim is only warranted where
      the jury's verdict is so contrary to the evidence that it shocks
      one's sense of justice. In determining whether this standard has


                                     -9-
J-S64016-14


      been met, appellate review is limited to whether the trial judge's
      discretion was properly exercised, and relief will only be granted
      where the facts and inferences of record disclose a palpable
      abuse of discretion.

Commonwealth v. Houser, 18 A.3d 1128, 1135-1136 (Pa. 2011) (citations

and internal quotation marks omitted).

      In support of his challenge to the weight of the evidence, Appellant

solely avers that Grimm’s “testimony was consistently contradictory and the

Commonwealth failed to link [Appellant] to the items in question, namely

the weapon and the drugs. The evidence, and the lack of evidence, proves

that this verdict shocks ‘one’s sense of justice.’” Appellant’s Brief at 14-15.

In rejecting this claim, the trial court relied on its summary of the evidence

presented by the Commonwealth at Appellant’s trial, and concluded that it

“was of adequate weight to support the verdict of the jury….”        TCO at 5

(unpaginated).   Based on our discussion, supra, our review of the record,

and Appellant’s cursory argument on appeal, we ascertain no abuse of

discretion in the court’s decision to deny his weight of the evidence claim.

      Accordingly, we conclude that Appellant’s challenges to the weight and

sufficiency of the evidence are meritless.     However, under Newman, his

mandatory sentence of five years’ incarceration imposed under 42 Pa.C.S. §

9712.1 is illegal.   Consequently, we vacate his judgment of sentence and

remand for resentencing.

      Judgment of sentence vacated.          Case remanded for resentencing.

Jurisdiction relinquished.



                                    - 10 -
J-S64016-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/8/2014




                          - 11 -
