J-S33018-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                 Appellee                :
                                         :
           v.                            :
                                         :
CHARLES WOOD,                            :
                                         :
                 Appellant               : No. 931 EDA 2014

          Appeal from the Judgment of Sentence March 20, 2014,
               Court of Common Pleas, Philadelphia County,
             Criminal Division at No. CP-51-CR-0013719-2012

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and LAZARUS, JJ.

MEMORANDUM BY DONOHUE, J.:                           FILED JUNE 23, 2015

     Appellant, Charles Wood (“Wood”), appeals from the judgment of

sentence following his convictions for possession of a controlled substance

with the intent to deliver (“PWID”), 35 P.S. § 780-113(a)(30), possession of

a controlled substance (“simple possession”), 35 P.S. § 780-113(a)(16), and

criminal conspiracy, 18 Pa. C.S.A. § 903.   For the reasons that follow, we

vacate the judgment of sentence and remand to the trial court for

resentencing.

     Prior to trial, the trial court denied Wood’s motion to suppress

evidence seized pursuant to a search warrant. Wood then waived his right

to a jury trial, at which time the testimony from the suppression hearing was

incorporated into the trial record along with additional evidence.     In its

written opinion filed pursuant to Rule 1925(a) of the Pennsylvania Rules of
J-S33018-15


Appellate Procedure, the trial court provided the following brief summary of

the evidence introduced at trial:

            Based upon reliable information about drug activity,
            the Philadelphia police set up a surveillance and
            controlled buys at 4822 Palethorp Street on August 7
            and 8, 2012, on one of which, the testifying officer
            could not remember which, [Wood] was observed to
            exit the premises, sell 6.947 grams of cocaine to a
            confidential informant, who had previously arranged
            the buy over the telephone, and return to the
            premises.      A search warrant was obtained and
            executed on the 9th at which time, among other
            people, drugs, money and paraphernalia, [Wood]
            was found in possession of 44 pills of the controlled
            substance Clonazepam, a Chloral hydrate, on his
            person which were in a bottle with some other
            person’s name on its label. It is admitted that the
            bills of information did list the dates of all the crimes
            as being the 9th.

Trial Court Opinion, 8/7/2014, at 2.     The trial court found Wood guilty of

criminal conspiracy, simple possession, and PWID (specifically noting that

this conviction applied to both the sale of cocaine and to the Clonazepam

found on Wood’s person).1      The trial court sentenced Wood to a term of

incarceration of one to two years for PWID and a concurrent term of four

years of probation for criminal conspiracy. No penalty was assessed on the

simple possession conviction, as it was a lesser included offense that merged

for sentencing purposes.




1
  The trial court found Wood not guilty on a charge for possession of drug
paraphernalia.


                                      -2-
J-S33018-15


     On appeal, Wood raises four issues for our consideration and

determination:

     1.    Do not due process and Pa. R. Crim. P. 560 require
           that [Wood’s] conviction be vacated as to the August
           7 or 8, 2012 offenses for possession with intent to
           deliver, criminal conspiracy and possession of a
           controlled substance where:     (a) the information
           charged an offense date of August 9, 2012 only; (b)
           the Commonwealth did not amend the information;
           (c) the events of August 7 or 8, 2012 and August 9,
           2012 each had their own actus reus and were
           different offenses under Alleyne v. United States;
           and (d) [Wood] was misled, surprised and prejudiced
           by the lack of notice that he could be convicted of
           the events of August 7 or 8, 2012?

     2.    Do not due process and insufficiency of the evidence
           require that [Wood’s] conviction for possession with
           intent to deliver be vacated as to the Clonazepam
           pills, which [Wood] possessed with no intent to
           deliver, under all of the circumstances, including the
           fact that [Wood] never sold Clonazepam, the number
           of pills was consistent with personal use, and the
           Commonwealth called no expert witness?

     3.    Do not due process and insufficiency of the evidence
           require that [Wood’s] conviction for criminal
           conspiracy be vacated as there was no agreement to
           deliver any narcotics, including the cocaine delivered
           to the informant, the Clonazepam recovered from
           [Wood’s] person, or the two packets of cocaine found
           in the house?

     4.    Did not the lower court err in sentencing [Wood]
           under the mandatory minimum sentencing statute,
           18 Pa. C.S. § 7508 (Drug trafficking sentencing and
           penalties), as the entire statute is invalid because
           the procedural requirements within the statute are
           unconstitutional under the holding in Alleyne v.
           United States and the unconstitutional provisions




                                   -3-
J-S33018-15


            cannot be severed from the remainder of the
            statute?

Wood’s Brief at 3-4.

      In connection with Wood’s first issue on appeal, Rule 560(B)(3) of the

Rules of Criminal Procedure provides as follows:

      Rule 560. Information: Filing, Contents, Function

            (B) The information shall be signed by the attorney
            for the Commonwealth and shall be valid and
            sufficient in law if it contains:

                                 *    *      *

                  (3) the date when the offense is alleged
                  to have been committed if the precise
                  date is known, and the day of the week if
                  it is an essential element of the offense
                  charged, provided that if the precise date
                  is not known or if the offense is a
                  continuing one, an allegation that it was
                  committed on or about any date within
                  the period fixed by the statute of
                  limitations shall be sufficient;

Pa.R.Crim.P. 560(B)(3). Rule 564 permits an information to be amended to

correct a defect in, inter alia, “the date charged.” Pa.R.Crim.P. 564.

      On appeal, Wood contends that the trial court erred in denying his

motion for extraordinary relief pursuant to Rule 704(B), presented to the

trial court at the close of trial.   In this motion, Wood argued that all

convictions related to events occurring on August 7 or 8, 2012 must be

vacated because the information filed by the Commonwealth indicates that

all of the crimes with which Wood was charged took place on August 9,



                                     -4-
J-S33018-15


2012. A review of the certified record confirms that the information, filed on

December 4, 2012, lists four counts (PWID, conspiracy, simple possession,

paraphernalia), and with respect to each identifies “8/9/12” as the “Offense

Date.” Information, 12/4/2012, at 1. Similarly, the criminal complaint filed

against Wood accuses him of “violating the Penal Laws of Pennsylvania on or

about August 9, 2012 in the County of Philadelphia.”     Criminal Complaint,

8/10/2012, at 1.

      While   the   language   of   Rule   560(B)(3)   clearly   requires   the

Commonwealth to specify the date on which the alleged crime occurred, this

Court has held that “[d]ue process is not reducible to a mathematical

formula,” and the Commonwealth does not always need to prove a single

specific date of an alleged crime. Commonwealth v. Einhorn, 911 A.2d

960, 978 (Pa. Super. 2006) (quoting Commonwealth v. Devlin, 333 A.2d

888, 892 (Pa. 1975)).     Our Supreme Court has further instructed that

“indictments must be read in a common sense manner and are not to be

construed in an overly technical sense.”     Commonwealth v. Ohle, 470

A.2d 61, 73 (Pa. 1983). As a result, the Commonwealth need not prove that

the crime occurred on the date alleged in the indictment, except where the

date is an essential issue in the case (e.g., where the defendant presents an

alibi defense). See, e.g., Commonwealth v. Young, 748 A.2d 166, 182

(Pa. 1999). The purpose of the information is to provide the accused with

sufficient notice to prepare a defense. Commonwealth v. McIntosh, 476



                                    -5-
J-S33018-15


A.2d 1316, 1321 (Pa. Super. 1984) (citing Commonwealth v. Petrillo, 12

A.2d 317, 324 (Pa. 1940)). Accordingly, “[a] variance is not fatal unless it

could mislead the defendant at trial, impairs a substantial right or involves

an element of surprise that would prejudice the defendant’s efforts to

prepare his defense.”      Einhorn, 911 A.2d at 978; Commonwealth v.

Pope, 317 A.2d 887, 890 (Pa. 1974) (“It is well settled that a purported

variance will not be deemed fatal unless it could mislead the defendant at

trial, involves an element of surprise prejudicial to the defendant’s efforts to

prepare   his   defense,   precludes   the   defendant    from   anticipating   the

prosecution’s proof, or impairs a substantial right.”).

      The trial court found Wood guilty of crimes committed on both August

7 or 8, 2012 (the date of the sale of cocaine to the confidential informant)

and on August 9, 2012 (the time of arrest).

            There’s four charges. I find [Wood] guilty of three,
            not guilty of the paraphernalia charge. I am only
            concerned     with  [Wood’s]    conduct    in   two
            circumstances: One during the sale on the street at
            Masher and Palethorp and at the time of his arrest
            on his person; consequently, he is found guilty of
            [PWID], conspiracy, and simple possession.         I
            include in his possession the proceeds from the
            results of the sale to the confidential informant,
            which turned out to be the 6.94 grams [2] the 44
            pills on his person. I do not find ownership or


2
   The trial transcript has the words “in the” here. In its written opinion,
however, the trial court replaced them with the word “and.” The trial court
stated that “this must be a typo because the state did not submit the weight
of the Clonazepam, only that of the cocaine in the observed sale. Trial Court
Opinion, 8/7/2014, at 2 n.5.


                                       -6-
J-S33018-15


            possession by [Wood] of any of the other
            paraphernalia or the approximately 13,000 – or
            eleven-and-a-half, $12,000, found in his house.

N.T., 12/18/2013, at 47.

      Wood argues that he was prejudiced by the variances between the

dates in the information and the proof at trial in four ways.       First, Wood

contends that he did not believe that he was being charged with the

commission of any crimes on August 7 or 8, 2012, he did not litigate a

presentence motion to reveal the identity of the confidential informant.

Wood’s Brief at 20. Second, Wood alleges that the amount of drugs sold to

the confidential informant on August 7 or 8, 2012 triggered the imposition of

a mandatory minimum sentence under 18 Pa.C.S.A. § 7508, and that the

information failed to notify him of any quantity of drugs that the

Commonwealth would have to prove at trial. Id. at 21. Third, Wood argues

that because he was not aware that he faced possible mandatory minimums,

he was prejudiced in his trial strategy, in particular the decision not to insist

on cross-examining the chemist who analyzed the cocaine (rather than

stipulating to the amount set forth in the laboratory report). Id. at 21-22.

Fourth, Wood insists that he was prejudiced because the crimes of August 7

or 8, 2012 and August 9, 2012 were fundamentally different and thus

required different defenses. Id. at 22.

      Based upon our review of the certified record on appeal, we cannot

agree with Wood’s claims of prejudice, in substantial part because we cannot



                                      -7-
J-S33018-15


agree that Wood did not receive notice of the precise nature of the crimes

with which he was charged.      While it is true that the Commonwealth’s

information did not identify the dates of August 7 or 8, 2012, at least two

documents produced to Wood during discovery set forth these dates and the

illegal activities observed on each of them.   Both the affidavit of probable

cause for the search warrant of 4822 Palethorp as well as the police arrest

report describe in detail the observation of the confidential informant

“between 8-7-12 and 8-8-12,” including the purchase of “approx. weight (7)

grams” of powder cocaine from Wood. Affidavit of Probable Cause, Exhibit

D-2, at 2; Arrest Report, 8/9/2012, Exhibit D-1 at 1. In addition, while the

Commonwealth’s information failed to include these relevant dates, under

the PWID count the information specifically advised Wood that “the

Commonwealth will proceed under 18 Pa.C.S.A. § 7508 (relating to

mandatory sentencing and penalties for drug trafficking).”

     For these reasons, we conclude that Wood received sufficient notice

that he was being charged with crimes committed on August 7 or 8, 2012

relating to the sale of powder cocaine to a confidential informant, and that

the Commonwealth would offer evidence to support these charges at trial.

We likewise conclude that the Commonwealth provided Wood with sufficient

notice that it was charging him with a crime subject to mandatory minimum

sentence under 18 Pa.C.S.A. § 7508. In this regard, we note that at trial

Wood did not object to the Commonwealth’s introduction of evidence



                                    -8-
J-S33018-15


relating to the sale of powder cocaine to the confidential informant (including

the weight sold). Finally, our review of the trial transcript did not reflect any

prejudice regarding the differing nature of the charges on different dates, as

Wood (through cross-examination) presented a misidentification defense

regarding the sale on August 7 or 8, 2012, and a defense of non-ownership

with respect to the items found on August 9, 2012 at the time of service of

the search warrant.

      For his second issue on appeal, Wood argues that the Commonwealth

failed to present sufficient evidence to support the conviction for possession

with intent to deliver Clonazepam. Wood contends that there is no evidence

of intent to sell the 44 Clonazepam pills found on his person at the time of

his arrest on August 9, 2012, including no expert testimony to exclude the

possibility that the number of pills was consistent with personal use.       The

trial court concluded that while Wood was not “charged with or convicted of

selling Clonazepam,” he possessed “a sufficient quantity to allow the

inference that he intended to deliver them at some point.”           Trial Court

Opinion, 11/19/2014, at 4.

      We decline to address this issue on appeal.          The Commonwealth

charged Wood with a single count of PWID, and the trial court convicted

Wood of a single count of PWID and imposed a single sentence thereon.

Wood does not contest the sufficiency of the evidence presented in support

of his PWID conviction for possession of cocaine with the intent to deliver



                                      -9-
J-S33018-15


(based upon the observed sale to a confidential informant). Accordingly, the

Commonwealth presented sufficient evidence to support Wood’s conviction

for PWID (cocaine), and thus it is unnecessary to decide whether it also

presented   sufficient   evidence   to   support   a   conviction   for   PWID   of

Clonazepam.

      For his third issue on appeal, Wood argues that the Commonwealth did

not present sufficient evidence to support his conviction for criminal

conspiracy to commit PWID (cocaine and/or Clonazepam).              With regard to

the sale of cocaine, Wood argues that there was no evidence of an

agreement between himself and Hector Oyala (the owner/resident at 4822

Palethorp), or that Oyala even knew about the sale of cocaine to a

confidential informant. Wood’s Brief at 27-29.

      When presented with a challenge to the sufficiency of the evidence,

our standard of review is as follows:

            As a general matter, our standard of review of
            sufficiency claims requires that we evaluate the
            record “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. Widmer, 560 Pa.
            308, 744 A.2d 745, 751 (2000). “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.” Commonwealth v.
            Brewer, 876 A.2d 1029, 1032 (Pa. Super. 2005).
            Nevertheless,    “the Commonwealth      need   not
            establish guilt to a mathematical certainty.” Id.;
            see also Commonwealth v. Aguado, 760 A.2d



                                     - 10 -
J-S33018-15


           1181, 1185 (Pa. Super. 2000) (“[T]he facts and
           circumstances established by the Commonwealth
           need not be absolutely incompatible with the
           defendant's innocence”).      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.            See
           Commonwealth v. DiStefano, 782 A.2d 574, 582
           (Pa. Super. 2001).

           The Commonwealth may sustain its burden by
           means of wholly circumstantial evidence.         See
           Brewer, 876 A.2d at 1032. Accordingly, “[t]he fact
           that the evidence establishing a defendant’s
           participation in a crime is circumstantial does not
           preclude a conviction where the evidence coupled
           with the reasonable inferences drawn therefrom
           overcomes the presumption of innocence.”          Id.
           (quoting Commonwealth v. Murphy, 795 A.2d
           1025, 1038–39 (Pa. Super. 2002)). Significantly, we
           may not substitute our judgment for that of the fact
           finder; thus, so long as the evidence adduced,
           accepted in the light most favorable to the
           Commonwealth,      demonstrates     the    respective
           elements of a defendant's crimes beyond a
           reasonable doubt, the appellant's convictions will be
           upheld. See Brewer, 876 A.2d at 1032.

Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)

(quoting Commonwealth v. Pettyjohn, 64 A.3d 1072, 1074-75 (2013)).

     In Commonwealth v. Feliciano, 67 A.3d 19 (Pa. Super. 2013) (en

banc), this Court recently outlined the applicable law when evaluating a

conspiracy to commit PWID conviction. Therein, we stated,

           Section 903 of the Crimes Code sets forth the crime
           of conspiracy.




                                   - 11 -
J-S33018-15


                 (a)     Definition   of    conspiracy.—A
                 person is guilty of conspiracy with
                 another person or persons to commit a
                 crime if with the intent of promoting or
                 facilitating its commission he:

                 (1) agrees with such other person or
                 persons that they or one or more of
                 them will engage in conduct which
                 constitutes such crime or an attempt or
                 solicitation to commit such crime; or

                 (2) agrees to aid such other person or
                 persons in the planning or commission of
                 such crime or of an attempt or
                 solicitation to commit such crime.

           18 Pa.C.S. § 903.

           “To sustain a conviction for criminal conspiracy, the
           Commonwealth must establish the defendant: 1)
           entered into an agreement to commit or aid in an
           unlawful act 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. 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.

Feliciano, 67 A.3d at 25–26; Commonwealth v. Watley, 81 A.3d 108,

115-16 (Pa. Super. 2013), appeal denied, 95 A.3d 277 (Pa. 2014).




                                   - 12 -
J-S33018-15


     Based upon our review of the certified record on appeal, we conclude

that there was sufficient evidence to convict Wood of conspiracy to commit

PWID (cocaine).3 On August 7 and 8, 2012, the police observed Wood exit

from 4822 Palethorp Street, Oyala’s residence, sell 6.947 grams of cocaine

to a confidential informant, and then return to the premises. When police

served a search warrant at 4822 Palethorp Street on August 9, 2012, they

found both Oyala and Wood at the premises, with drug packaging items

(including plastic packets and two digital scales with cocaine residue on

them) in plain sight, and a substantial quantity of cash.      Applying our

standard of review by evaluating the evidence in the light most favorable to

the Commonwealth and giving it the benefit of all reasonable inferences, this

evidence was sufficient to establish the elements of a criminal conspiracy:

an agreement and shared criminal intent between Oyala and Wood to

distribute cocaine from 4822 Palethorp Street, and an overt act in

furtherance of the conspiracy (Wood’s sale of cocaine to the confidential

informant). See, e.g., Commonwealth v. Perez, 931 A.2d 703, 709 (Pa.

Super. 2007).

     For his fourth issue on appeal, Wood contends that the trial court erred

in sentencing him in accordance with the mandatory minimum sentencing

statute, 18 Pa. C.S.A. § 7508 (drug trafficking sentencing and penalties), as


3
   Because we conclude that there was sufficient evidence to support the
conspiracy conviction for cocaine, we need not address Wood’s arguments
regarding conspiracy to distribute Clonazepam.


                                   - 13 -
J-S33018-15


the entire statute is unconstitutional.      In a written opinion, the trial court

indicated that it did not apply the mandatory minimums under section 7508

in sentencing Wood.          Trial Court Opinion, 8/7/2014, at 3-4 (“[T]he

defendant here lacks standing to raise the issue because, as shown, the

court simply did not impose the mandatory sentence.”). Our review of the

transcript of Wood’s sentencing, however, does not support this assertion,

as the trial court rejected Wood’s contention that Alleyne v. U.S., 133 S.

Ct. 2151 (2013), applied in this case, and subsequently sentenced Wood for

the PWID conviction in accordance with “the requirements of the law.” N.T.,

4/20/2014, 4, 10.     On appeal, the Commonwealth does not dispute that

Wood was sentenced pursuant to section 7508.            Commonwealth’s Brief at

17-19.

      This   Court   has     ruled   that   section   7508,   in   its   entirety,   is

unconstitutional.    Commonwealth v. Cardwell, 105 A.3d 748, 755 (Pa.

Super. 2014); Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014)

(en banc).    As such, the trial court’s reliance upon section 7508 when

sentencing Wood was error, necessitating that we vacate Wood’s sentence

and remand for resentencing.

      Judgment of sentence vacated.             Case remanded for resentencing.

Jurisdiction relinquished.




                                       - 14 -
J-S33018-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/23/2015




                          - 15 -
