J-A16028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

LAMAR VASHAWN ROZIER

                            Appellant              No. 1239 WDA 2015


             Appeal from the Judgment of Sentence April 22, 2015
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0012727-2013


BEFORE: SHOGAN, OLSON and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                       FILED SEPTEMBER 27, 2016

       Appellant, Lamar Vashawn Rozier, appeals from the judgment of

sentence entered on April 22, 2015, as made final by the denial of his post-

sentence motion on July 23, 2015, following his jury convictions of

possession with intent to deliver a controlled substance (PWID), possession

of a controlled substance, and carrying a firearm without a license.1   We

affirm Appellant’s convictions, but remand for resentencing.

       We briefly summarize the facts and procedural history of this case as

follows. On June 19, 2013, the Allegheny County Sheriff’s Office responded

to a call of shots fired on the Northside in Pittsburgh, Pennsylvania and a
____________________________________________


1
   35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(16), and 18 Pa.C.S.A.
§ 6106(a)(1), respectively. The trial court also conducted a concurrent
bench trial and found Appellant guilty of persons not to possess a firearm
under 18 Pa.C.S.A. § 6105(a)(1).



*Retired Senior Judge assigned to the Superior Court.
J-A16028-16



white van fleeing the scene.         Shortly thereafter, Deputy Randy Grossman

pulled over a white van matching that description on the McKees Rocks

Bridge.    The driver, Jerrell Knight, identified himself as a jitney driver.

Appellant was in the passenger seat.             Knight complied with Deputy

Grossman’s directives to keep his hands visible during the traffic stop, but

Appellant did not.      Appellant continued moving inside the vehicle.    Once

Deputy Grossman removed Knight from the vehicle, Knight told the officer

that Appellant put a firearm in the vehicle’s glove compartment.         Deputy

Grossman searched the vehicle and recovered a loaded Smith and Wesson

.38 special revolver from the glove compartment. Appellant did not have a

valid license to carry a firearm. In a search incident to his arrest, Deputy

Grossman recovered 42 individual packets of heroin and $298.00 in cash

from Appellant’s pockets. Police also recovered two unidentified cell phones

from the floor of the passenger side of the car.

       On November 25, 2014, a jury convicted Appellant of PWID,

possession of a controlled substance and carrying a firearm without a

license. The trial court subsequently found Appellant guilty of persons not to

possess a firearm at the conclusion of a concurrent bench trial. This timely

appeal resulted.2
____________________________________________


2
  Appellant filed a timely post-sentence motion after the trial court granted
an extension. On July 23, 2015, the trial court denied relief. Appellant filed
a notice of appeal on August 10, 2015. On August 19, 2015, the trial court
entered an order directing Appellant to file a concise statement of errors
(Footnote Continued Next Page)


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      On appeal, Appellant presents the following issues for our review:

         I.     Whether the evidence of record was insufficient to
                support a conviction of possession with intent to
                deliver since the Commonwealth failed to show that []
                Appellant    intended to  deliver    the   controlled
                substance?

         II.    Whether the evidence of record was insufficient to
                support [Appellant’s] conviction [] of carrying a
                firearm without a license since he did not possess the
                firearm?

         III.   Whether the verdict of the jury for possession with
                intent to deliver and carrying a gun without a license
                is against the weight of the evidence in this case?

         IV.    Whether the lower court erred in sentencing by failing
                to take into consideration that [] Appellant took many
                classes in jail, was in a drug pod for a significant
                period of time, and participated in a drug program,
                the reentry program and the hope program in jail?
                Whether the lower court also erred by giving
                consecutive sentences, and failing to determine if []
                Appellant was eligible for RRRI, CIP, SIP or if the
                court costs were waived?

Appellant’s Brief at 7 (complete capitalization and suggested answers

omitted).

    Appellant’s first two issues challenge the sufficiency of the evidence

presented by the Commonwealth with regard to his convictions for PWID and

carrying a firearm without a license. We will examine those claims together.


                       _______________________
(Footnote Continued)

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
on September 1, 2015. On December 10, 2015, the trial court filed an
opinion pursuant to Pa.R.A.P. 1925(a).



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Appellant claims the Commonwealth failed to present sufficient evidence that

he possessed the heroin, recovered from his jacket, with the intent to deliver

it. Id. at 12. Instead, Appellant maintains he “credibly testified that he was

a heroin addict and used between thirty and sixty stamp bags a day [and]

snorted the heroin off his hand while he was in the van.” Id. at 12-13. He

claims no one saw him selling drugs or suggested he did. Id. at 13.

     “A claim impugning the sufficiency of the evidence presents us with a

question of law.” Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa.

Super. 2014) (citation omitted). Our standard of review is well-established:

        The standard we apply 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
        finder 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.

        This standard is equally applicable      to cases where the
        evidence is circumstantial rather than   direct so long as the
        combination of the evidence links the    accused to the crime
        beyond a reasonable doubt. Although      a conviction must be

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        based on more than mere suspicion or conjecture, the
        Commonwealth need not establish guilt to a mathematical
        certainty.

Id. (citations and quotations omitted).

      When reviewing a challenge to the sufficiency of the evidence with

regards to a PWID conviction,

        [t]he Commonwealth must prove both the possession of the
        controlled substance and the intent to deliver the controlled
        substance. It is well settled that all the facts and
        circumstances surrounding possession are relevant in
        making a determination of whether contraband was
        possessed with intent to deliver.

        In Pennsylvania, the intent to deliver may be inferred from
        possession of a large quantity of controlled substance.

Commonwealth v. Lee, 956 A.2d 1024, 1028 (Pa. Super. 2008) (internal

citation omitted). Further, our Supreme Court explained:

        Other factors to consider when determining whether a
        defendant intended to deliver a controlled substance include
        the manner in which the controlled substance was
        packaged, the behavior of the defendant, the presence of
        drug paraphernalia, and large sums of cash found in
        possession of the defendant. The final factor to be
        considered is expert testimony. Expert opinion testimony is
        admissible concerning 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.

Commonwealth v. Ratsamy, 934 A.2d 1233, 1237–1238 (Pa. 2007).

      Here, police recovered 42 individually packaged bags of heroin and

“[a]round $300[.00] in random denomination currency.” N.T., 11/24/2014,

at 111. An expert for the Commonwealth testified that the presence of cash

on Appellant’s person, the two cellular phones recovered from the area near

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Appellant’s feet, and a lack of paraphernalia showed the narcotics were

possessed with intent to deliver them. Id. at 119, 123-124. Moreover, he

opined that the packaging of the drugs was indicative of drug sales, because

smaller, individual bags are more expensive to purchase and drug users tend

to buy in bulk for personal consumption. Id. at 120-123. Based upon our

standard of review, we find the foregoing evidence was sufficient to support

Appellant’s PWID conviction.

      Next, with regard to carrying a firearm without a license, Appellant

argues the evidence was insufficient because: (1) police found the firearm

in a vehicle he did not own; (2) there was no physical evidence Appellant

handled the weapon, (3) there was another passenger in the front seat

before Appellant, and; (4) Knight, the jitney driver, testified against

Appellant only after the Commonwealth agreed to not prosecute Knight.

Appellant’s Brief at 15.

      “[A]ny person who carries a firearm in any vehicle or any person who

carries a firearm concealed on or about his person, except in his place of

abode or fixed place of business, without a valid and lawfully issued license

under this chapter commits a felony of the third degree.”        18 Pa.C.S.A.

§ 6106.    Because Appellant was not in physical possession of the firearm,

the Commonwealth was required to establish that he had constructive

possession of it to support his conviction:

          Constructive possession is a legal fiction, a pragmatic
          construct to deal with the realities of criminal law
          enforcement. Constructive possession is an inference arising

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          from a set of facts that possession of the contraband was
          more likely than not. We have defined constructive
          possession as conscious dominion. We subsequently defined
          conscious dominion as the power to control the contraband
          and the intent to exercise that control. To aid application,
          we have held that constructive possession may be
          established by the totality of the circumstances.

Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013).

      Here, Deputy Grossman testified that he was responding to a call of

gunshots fired. N.T., 11/24/2014, at 32. When pulling over the vehicle at

issue, Appellant initially got out of the car and police ordered him back

inside.   Id. at 36.   The jitney driver, Jerrell Knight, complied with Deputy

Grossman’s initial demand to show his hands, but Appellant, who was sitting

in the front passenger seat, did not obey.     Id. at 39.   Deputy Grossman

testified that, despite the van having tinted windows, he could see Appellant

was moving around the passenger compartment. Id. at 39, 44. Appellant

would not exit the vehicle when police ordered him to. Id. at 41. Deputy

Grossman opined that based upon the size of the vehicle, Knight would not

have been able to reach across the car and place the gun in the glove

compartment with the officer watching him. Id. at 44.

      The Commonwealth also presented the testimony of Knight. Initially,

the Commonwealth made the jury aware that Knight had been charged with

carrying a firearm without a license, but those charges would be dropped in

exchange for his testimony in this case. N.T., 11/24/2014, at 74-75. Knight

testified that when police pulled the vehicle over, Appellant took a firearm

from his waistband and put it in the glove compartment. Id. at 82.       When


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police were handcuffing Knight, he told the officers what Appellant had done.

Id. at 83.

      Viewing    the     evidence   in   the     light       most   favorable    to     the

Commonwealth, as our standard requires, we find there was sufficient

evidence that Appellant constructively possessed the firearm.              Police were

responding to shots fired when they pulled over the vehicle in question.

Appellant immediately exited the vehicle, was ordered by police back inside,

and then continued moving around despite being told to show his hands.

Appellant    displayed   behavior   indicative    of     a    consciousness     of    guilt,

specifically, trying to distance himself from the vehicle and making

movements near the glove compartment, where the gun was recovered,

despite police commands to stop. See Commonwealth v. Hughes, 865

A.2d 761, 792 (Pa. 2004) (“The conduct of an accused following a crime,

including ‘manifestations of mental distress,’ is admissible as tending to

show guilt.”). The jitney driver immediately told police that Appellant took a

gun from his waistband and placed it in the glove compartment where police

found it, directly in front of where Appellant was last sitting. In totality, the

evidence was sufficient to show Appellant exercised conscious dominion and

control over the firearm to support his conviction.

      In his third issue presented, Appellant maintains his convictions for

PWID and carrying a firearm without a license were against the weight of the

evidence.     Appellant essentially relies upon his same arguments in

challenging the sufficiency of the evidence. Appellant’s Brief at 16-17.

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J-A16028-16


      The standard of review employed when deciding a weight of the

evidence claim is well-settled:

        A motion for a new trial based on a claim that the verdict is
        against the weight of the evidence is addressed to the
        discretion of the trial court. A new trial should not be
        granted because of a mere conflict in the testimony or
        because the judge on the same facts would have arrived at
        a different conclusion. Rather, the role of the trial judge is
        to determine that 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.
        It has often been stated that 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.

        An appellate court's standard of review when presented with
        a weight of the evidence claim is distinct from the standard
        of review applied by the trial court:

            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. 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 verdict is against the weight of the
            evidence. One of the least assailable reasons for
            granting or denying a new trial is the lower court's
            conviction that the verdict was or was not against
            the weight of the evidence and that a new trial
            should be granted in the interest of justice.

        This does not mean that the exercise of discretion by the
        trial court in granting or denying a motion for a new trial
        based on a challenge to the weight of the evidence is
        unfettered. In describing the limits of a trial court's
        discretion, [our Supreme Court has] explained:




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               The term discretion imports the exercise of
               judgment, wisdom and skill so as to reach a
               dispassionate conclusion within the framework of the
               law, and is not exercised for the purpose of giving
               effect to the will of the judge. Discretion must be
               exercised on the foundation of reason, as opposed to
               prejudice, personal motivations, caprice or arbitrary
               actions. Discretion is abused where 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.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal citations

and quotations omitted).

      Upon review, we discern no abuse of discretion in the trial court’s

denial of Appellant’s weight claim. Based on the evidence presented, as set

forth at length above, the jury’s verdict did not shock one’s sense of justice.

The judgment was reasonable, the law was properly applied and record

shows that the trial court’s decision was not the result of partiality,

prejudice, bias or ill-will. As such, Appellant is not entitled to relief on this

claim.

      In his last issue presented, Appellant challenges the sentences

imposed by the trial court. More specifically, Appellant claims the trial court:

(1)   failed   to   take   into   consideration   his   rehabilitative   efforts   while

imprisoned; (2) sentenced Appellant to consecutive terms of imprisonment

resulting “in an unfair sentence[,]” and; (3) did not make a record

determination whether Appellant was eligible for the Recidivism Risk

Reduction Incentive (RRRI) program. Appellant’s Brief at 19-20.


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        The RRRI Act provides (1) that a sentencing court must designate a

sentence as an RRRI sentence whenever the defendant is eligible for that

designation, and (2) that a defendant is eligible for that designation if he has

not been previously convicted of certain enumerated offenses and does not

demonstrate a history of present or past violent behavior.            61 Pa.C.S.A.

§ 4503. Recently, this Court determined “that it is legal error to fail to

impose a RRRI minimum on an eligible offender. A challenge to a court's

failure to impose an RRRI sentence implicates the legality of the sentence.”

Commonwealth v. Hodge, 2016 WL 4088092, at *2 (Pa. Super. 2016)

(brackets and internal citation omitted).        “An illegal sentence must be

vacated.” Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. Super. 2014)

(citation omitted). The Commonwealth concedes that Appellant’s sentence

is illegal and agrees to remand the case for the trial court to make the

statutorily   mandated,   on    the   record,   RRRI   eligibility   determination.

Commonwealth’s Brief at 27.       We agree.     Moreover, because Appellant is

entitled to resentencing, his remaining, discretionary sentencing claims are

moot.

        Accordingly, based upon all of the foregoing, we affirm Appellant’s

convictions, but vacate Appellant’s sentence and remand for the trial court

to determine Appellant’s RRRI eligibility.

        Convictions affirmed.   Sentences vacated.     Remand for resentencing

consistent with this memorandum. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/27/2016




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