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NON-PRECEDENTIAL DECISION              SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
HYKEEM BOYD,                             :        No. 1747 EDA 2013
                                         :
                          Appellant      :


           Appeal from the Judgment of Sentence, May 2, 2013,
           in the Court of Common Pleas of Montgomery County
            Criminal Division at Nos. CP-46-CR-0006404-2011,
                         CP-46-CR-0006414-2011


BEFORE: FORD ELLIOTT, P.J.E., BOWES AND SHOGAN, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED SEPTEMBER 24, 2014

     Hykeem Boyd appeals the judgment of sentence entered on May 2,

2013, in the Court of Common Pleas of Montgomery County. We affirm.

     The facts and procedural history of this case are as follows. At trial,

the Commonwealth presented testimony from one witness, Corporal David

Stowell of the Norristown Police Department. Corporal Stowell testified that

on August 15, 2011, he was positioned on the roof of a building to survey a

residence approximately one block away, 127 West Airy Street. While using

binoculars, Corporal Stowell saw another corporal with the Norristown Police



a controlled buy.        (Notes of testimony, 2/22/11 at 12.)   The CI had

previously been searched and found to be free of contraband.      As the CI
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arrived at 127 West Airy Street, appellant exited the house. The two walked

together onto another street, then re-emerged a few seconds later.



vehicle.

      The parties stipulated that the other corporal would testify as follows.

On the date in question, Corporal Dumas was running a controlled buy. (Id.

at 13.) The corporal searched the CI, whom he found to be free of drugs

and contraband.     He gave the CI money and watched him walk down the

street.    The corporal witnessed the CI return to the car minutes later and

hand over contraband.      The parties stipulated that a controlled buy took

place and that the contraband was heroin.           (Id.)   The only fact not

stipulated                                 Id.)

      Corporal Stowell also testified to other drug transactions he witnessed

appellant engage in on August 15, 2011.           Prior to the controlled buy,

Corporal Stowell witnessed Matthew Works texting and walking in the

direction of 127 West Airy Street. (Id. at 17.) As Works approached the

residence, appellant came out and the two men walked in the same direction

that appellant was later seen walking with the CI.      (Id.)   A few seconds

later, the men re-emerged and appellant returned to the residence. Works

was stopped by the police and found to be in possession of three pinkish red

bags containing cocaine. (Id. at 18.)




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      Going slightly further back in time, Corporal Stowell testified to a

controlled buy which occurred outside the residence.                   Corporal Stowell
                                                                           1
                                                                               Appellant

had been seen going in and out of the residence several times prior to the

transaction with Davita. (Id. at 22.)

      Thereafter,   Norristown     police      executed     a   search     warrant    at

127 West Airy Street, Apartment 2. In the entryway, police found a letter

addressed to appellant, albeit at a different address, along with mail

addressed to Davita.       (Id. at 23-24.)           Corporal Stowell testified that

appellant   and   his   sister   had   just    moved     into   this   residence   from

137 Ann Street. (Id. at 36.) The apartment at 127 West Airy Street, on the

second and third floors of the building, was reached via stairs from the first

floor foyer. (Id. at 25.) Upon entering the kitchen, the police observed a

juvenile male with approximately 25 bags of crack cocaine at his feet.                A

search of the kitchen cupboard revealed approximately 42 bags of heroin

                                              Id.)

      Underneath the radiator in the kitchen were a loaded handgun and

approximately 100 bags of crack cocaine.              (Id. at 25-26.)       A box with


1
  Davita Boyd was convicted of possession of a controlled substance with
intent to deliver (heroin), possession of a controlled substance with intent to
deliver (cocaine), and two counts of criminal conspiracy. A panel of this
court affirmed her conviction but remanded the case for re-sentencing
pursuant to Alleyne v. United States,              U.S.     , 133 S.Ct. 2151
(2013); Commonwealth v. Boyd, No. 235 EDA 2013, unpublished
memorandum (Pa.Super. filed June 23, 2014).


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approximately $1,200 was recovered on a table. Most of the bags of crack

cocaine were the same size, and had the same pinkish/red color, as the bags

recovered from Works. (Id. at 26, 29.) Appellant was seen climbing out the

back window of the apartment when police arrived, but he was immediately

apprehended.    (Id. at 41-42.)      Upon arrest, a bag of marijuana was

recovered from his pocket. (Id. at 42.)

     The Commonwealth brought charges against appellant under two

separate docket numbers.       Following a bench trial, in the case at

No. 6404-11, appellant was found guilty of possession with intent to deliver

crack cocaine and heroin, possession of marijuana, and possession of drug

paraphernalia. The trial court found appellant guilty in the case indexed at

No. 6414-11 of possession with intent to deliver (cocaine), possession of

cocaine, and drug paraphernalia. On May 2, 2013, the trial court imposed

the recommended sentence which appellant agreed to; appellant was



to deliver conviction at No. 6404-

for possession with intent to deliver at No. 6414-11.       No post-sentence

motions were filed.

     Appellant failed to file a direct appeal immediately following the

imposition of judgment of sentence.        However, following the filing of a

pro se motion on May 17, 2013, his appeal rights were reinstated nunc pro

tunc on May 23, 2013. Appellant filed a pro se notice of appeal on June 13,



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2013, and he is now represented by counsel.       The following issues have

been presented for our review.

           I.     Whether the Court erred, in granting the
                                                 Limine to admit
                  other    bad    act   evidence    pursuant   to
                  Pa.R.E. 404(B) because the probative value of
                  admitting prior drug sales did not outweigh the
                  unfair prejudice to appellant?

           II.    Whether there was insufficient evidence to
                  support the finding of guilt on the charges of
                  Possession with Intent to Deliver and
                  Possession of the Cocaine and Heroin found
                  inside 127 West Airy Street, Norristown,
                  Pennsylvania, as the only evidence attempting
                  to show constructive possession is a letter
                  found inside the entryway addressed to
                  appellant at 137 Ann Street, Norristown,
                  besides his physical presence at the time of the
                  search?

           III.   Whether the appellant knowingly, voluntarily,

                  recommendation        to   accept     a    joint
                  recommended sentence of five (5) to ten (10)
                  years of incarceration on the Possession with
                  Intent to deliver charge on file indexed at
                  6404-2011 and a sentence of one (1) to
                  three (3) years of incarceration on the
                  Possession with Intent to deliver charge on file
                  indexed at 6414-2011 with RRRI eligibility
                  because appellant mistakenly believed that the
                  Commonwealth could have sought imposition
                  of a five year mandatory minimum sentence
                  for a drug offense being in close proximity to a
                  firearm, which was not set forth in the Bills of
                  Information and/or found as a fact at the
                  bench trial in accordance with the decision of
                  [Alleyne,      supra]     and     where      the
                  Commonwealth withdrew all firearms charges
                  at the time of trial?



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            IV.   Whether      the    Commonwealth      presented
                  insufficient evidence to establish the weight of
                  the controlled substances for purposes of
                  sentencing as the lab reports were never
                  introduced into evidence at the time of the trial
                  and/or at the sentencing hearing, which were
                  relied upon in formulating the sentencing
                  guidelines and considered by appellant when
                  accepting a joint recommended sentence?

                     -5.

      The first issue presented concerns whether the trial court erred in

                                    -trial motion and admitting evidence that

appellant had engaged in prior drug sales. The Commonwealth argued that

the prior drug sales would be introduced not to show propensity, but to

demonstrate intent. (Notes of testimony, 2/22/13 at 6.)

      Admission of evidence rests within the discretion of the trial court, and

we will not reverse absent an abuse of discretion.        Commonwealth v.

Washington

when 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,

                           Commonwealth v. Martinez, 917 A.2d 856, 859

(Pa.Super. 2007).

      Generally speaking, evidence is admissible if it is relev

logically tends to establish a material fact in the case, tends to make a fact

at issue more or less probable or supports a reasonable inference or



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                                          Commonwealth v. Williams, 896

A.2d 523, 539 (Pa. 2006) (citation omitted); Pa.R.E. 402. It is settled law in

this Commonwealth that other bad acts evidence is inadmissible to prove a

                                             Commonwealth v. Brookins,

10 A.3d 1251, 1256 (Pa.Super. 2010), appeal denied, 22 A.3d 1033 (Pa.

2011).

      However, bad acts evidence may be introduced for other limited

purposes -- to prove motive, intent, absence of mistake or accident,

common scheme, plan, or design, or to establish the identity of the person

charged with the commission of the crime on trial.       Commonwealth v.

Slyman, 483 A.2d 519, 531 (Pa.Super. 1984).        Nevertheless, even where

evidence is within one of the above exceptions, its probative value must still

outweigh its prejudicial effect. Commonwealth v. Brozik, 527 A.2d 161,

167 (Pa.Super. 1987).

      Appellant was charged with possession with intent to deliver in

connection with the search of 127 West Airy Street.      Appellant stipulated

that the drugs found were possessed with the intent to distribute. (Notes of

testimony, 2/22/13 at 43.)     Appellant challenged his connection to the

contraband. However, the prior bad acts evidence that appellant had twice

engaged in drug sales immediately after exiting the residence in the days

preceding the search was probative of his status as a drug dealer operating

out of the residence. Testimony was presented that the heroin sold to the



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residence searched.     Thus, we find the bad acts evidence was directly

relevant to the charge of possession with intent to deliver cocaine and was



      Next, appellant argues that the evidence was insufficient to support his

conviction of possession with intent to deliver. No relief is due.

                   Our standard of review in a sufficiency of the
            evidence challenge is to determine if the
            Commonwealth established beyond a reasonable
            doubt each of the elements of the offense,
            considering all the evidence admitted at trial, and
            drawing all reasonable inferences therefrom in favor
            of the Commonwealth as the verdict-winner. The
            trier of fact bears the responsibility of assessing the
            credibility of the witnesses and weighing the
            evidence presented. In doing so, the trier of fact is
            free to believe all, part, or none of the evidence.

Commonwealth v. Newton, 994 A.2d 1127, 1131 (Pa.Super. 2010),

appeal denied, 8 A.3d 898 (Pa. 2010). The Commonwealth may sustain its

burden by means of wholly circumstantial evidence, and we must evaluate

the entire trial record and consider all evidence received against the

defendant. Commonwealth v. Markman, 916 A.2d 586, 598 (Pa. 2007).

      As appellant was not in physical possession of the contraband, the

Commonwealth      was   required   to    establish   that   he   had   constructive

possession of the seized items to support his convictions.

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


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            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. Brown, 48 A.3d 426, 430 (Pa.Super. 2012), appeal

denied, 63 A.3d 1243 (Pa. 2013) (internal quotation marks and citation

omitted). Additionally, it is possible for two people to have joint constructive

possession of an item of contraband.        Commonwealth v. Bricker, 882

A.2d 1008, 1016-1017 (Pa.Super. 2005).

      Appellant argues that he was merely present at the residence and the

letter found inside addressed to him demonstrated that he lived at another

                                    -18.)   We disagree; when viewed in the

totality, the facts and circumstances support the finding that appellant was

in constructive possession of the contraband.        The letter addressed to



not the only evidence presented. (Trial court opinion, 7/19/13 at 14.) The

Commonwealth presented evidence that appellant was involved in a

controlled heroin purchase and an uncontrolled crack purchase immediately

upon exiting the residence in the days before the search warrant was

executed. The Commonwealth also presented evidence that appellant fled

the house when the police search began. Commonwealth v. Hudson, 955




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A.2d 1031, 1036 (Pa.Super. 2008) (flight is a circumstance tending to prove

consciousness of guilt). Appellant is entitled to no relief.2

      The third issue presented concerns the sentence imposed of five to

ten yea

deliver in the case indexed at No. 6404-11.            Appellant claims that his

decision to agree to the recommended sentence was not knowing, voluntary,

or intelligent as he mistakenly believed the Commonwealth could have

sought a five-year mandatory minimum based on the drugs he possessed



that Alleyne, supra, would render his sentence illegal.

      To the extent that appellant raises a claim of ineffectiveness of trial



find this claim is premature and should properly be raised, if necessary, in a

petition   pursuant   to   the   Post    Conviction   Relief   Act,   42   Pa.C.S.A.

§§ 9541-9546.      Our supreme court recently reaffirmed the holding in



2
  Appellant now argues that, in its opinion, while the trial court found the
packaging on the heroin and cocaine found in the residence was the same as
that recovered from the prior controlled and uncontrolled buys, the evidence
did not show that the heroin he sold on August 15, 2011, was packaged in
                                                           -19.) Appellant also
claims the evidence did not establish that the first controlled buy of heroin
                                           Id. We affirm, albeit based on an
analysis different from that articulated by the trial court.                See
Commonwealth v. Harper, 611 A.2d 1211, 1213 n.1 (Pa.Super. 1992)
                 affirm the decision of the trial court if there is any basis on




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Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), in Commonwealth v.

Holmes

ineffective assistance of counsel are to be deferred to PCRA review; trial

courts should not entertain claims of ineffectiveness upon postverdict

                                                                             Id.

at 576. The Holmes

cir

exercise of its discretion, determines that a claim (or claims) of ineffective

assistance is both meritorious and apparent from the record so that

immediate consideration and relief is



comprehensive, ineffectiveness claims if such review is accomplished by a

                         Id. at 577-578.

      Instantly, the trial court did not find the claim to be meritorious,



appellant has not stated his intention to waive collateral review.         Thus,

neither of the exceptions outlined in Holmes is applicable here, and the

instant claim is not reviewable on this direct appeal.

      Additionally, to the extent that appellant raises an illegality of sentence

claim pursuant to Alleyne, we find no relief is due. In Alleyne, the United

States Supreme Court held the following:

                  Any fact that, by law, increases the penalty for



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            the jury and found beyond a reasonable doubt.
            Mandatory minimum sentences increase the penalty
            for a crime. It follows, then, that any fact that
            inc
            that must be submitted to the jury.

Alleyne, 133 S.Ct. at 2155. Recently in Commonwealth v. Newman,

A.3d     , *2, 2014 WL 4088805 (Pa.Super. 2014) (en banc), this court

reviewed case law tracing where the United States Supreme Court allowed

trial courts to make findings regarding sentencing factors.   The Newman

court found that Alleyne may be applied retroactively to cases pending on

direct appeal and an issue under Alleyne pertains to the legality of the

sentence and cannot be waived on appeal. Most importantly, the Newman

court found Alleyne rendered 42 Pa.C.S.A. § 9712.1 unconstitutional. Id.

at *10. See also Commonwealth v. Watley, 81 A.3d 108, 117 (Pa.Super.

2013) (en banc), appeal denied,        A.3d     (Pa. 2014).

       However, the Sixth Amendment concerns present in Alleyne are not

implicated in this case. The Commonwealth did not file notice invoking the

mandatory minimum, and the court never received evidence establishing the

applicability of the mandatory minimum under 42 Pa.C.S.A. § 9712.1(c). At

the sentencing hearing, the parties merely indicated that they jointly

recommended a five-to-ten-year sentence for possession of heroin with

intent to deliver. The trial court did not make a finding concerning whether



found guilty of possessing. Nor is there any indication on the record of the



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terms and circumstances discussed in recommending the sentence to the

trial court.   This court relies only on facts of record.    Commonwealth v.

Montalvo, 641 A.2d 1176, 1183 (Pa.Super. 1994). Facts dehors the record,

such as assertions that appear only in briefs, are not to be considered.

Commonwealth v. Greer, 866 A.2d 433, 435 n.2 (Pa.Super. 2005).

Appellant is not entitled to relief.

      The final issue presented

with intent to deliver cocaine.        Appellant argues that the evidence did not

demonstrate the weight of the cocaine found in the residence.          He argues

that the weight would impact the offense gravity score for the possession

with intent to deliver convictions.       We agree with the Commonwealth that

this claim is waived.

                                                                          aises a



Commonwealth v. Johnson, 758 A.2d 1214, 1216 (Pa.Super. 2000)

(citation omitted) (challenge to the discretionary aspects of sentence,

alleging erroneous computation of prior record score).         Since appellant is

challenging the discretionary aspects of his sentence, we must consider his

brief on this issue a petition for permission to appeal. Commonwealth v.

Yanoff, 690 A.2d 260, 267 (Pa.Super. 1997). See also Commonwealth

v. Tuladziecki, 522 A.2d 17 (Pa. 1987); 42 Pa.C.S.A. § 9781(b).




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     Initially, there is a four-part test to determine if we may review the

discretionary aspects of a sentence:

           1) the issue must be specifically preserved in a
           timely motion to modify sentence; 2) a timely notice
           of appeal must be filed; 3) the issue must be set
           forth in the issues to be raised on appeal in the
           statement of questions presented; and 4) the issue
           must be included within a concise statement of
           reasons for allowance of appeal which demonstrates
           a substantial question that the sentence imposed
           was not appropriate under the Sentencing Code.

                             , 849 A.2d 243, 253-254 (Pa.Super. 2004).

     Appellant has not satisfied each of these prerequisites. Appellant did

not raise this issue at sentencing or in a post-sentence motion. Accordingly,

this issue is not preserved for our review. Commonwealth v. Mann, 820

A.2d 788, 794 (Pa.Super. 2003) (stating issues challenging discretionary

aspects of sentencing must be raised in post-sentence motion or by raising

the claim during the sentencing proceedings or the issue is waived).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/24/2014




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