Commonwealth v. Munro

COMMONWEALTH OF PENNSYLVANIA v. JAHMAL MUNRO Appellant

No. 1385 EDA 2019

No. J-S13003-21

Superior Court of Pennsylvania

November 5, 2021

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence Entered April 22, 2019 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0002000-2018

BEFORE: OLSON, J., KING, J., and PELLEGRINI, J. ^[*]

MEMORANDUM

OLSON J.

Appellant Jahmal Munro, appeals from the April 22, 2019 judgment of sentence that imposed, inter alia, an aggregate sentence of 54 to 108 months' incarceration after a jury convicted Appellant of manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance and firearms not to be carried without a license, and after the trial court, in a bench trial, convicted Appellant of persons not to possess, use, manufacture, control, sell, or transfer firearms.^[1] We affirm.

The trial court summarized the procedural history as follows:

[On] February 14, 2018, Appellant was formally arraigned and charged with various violations relating to the possession and distribution of a controlled substance and several firearm-related violations. A jury trial commenced [] on March 20, 2Ol[9, ] and concluded the following day. [Upon] conclusion of the trial, the jury found [] Appellant guilty of [manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance] and [firearms not to be carried] without a license. Based on a stipulation of counsel, the charge of [persons not to possess firearms] was considered by the [trial] court separately. Appellant was found guilty of that charge as well. [On April 22, 2019, Appellant] was sentenced to an aggregate term [] of [54 to 108] months[' incarceration]; ordered to pay costs, fees[, ] and other assessments; [ordered] to submit to DNA testing; [ordered] to forfeit firearms and cellphones; and [] declared ineligible for either boot camp or [recidivism risk reduction incentive] treatment.

Trial Court Opinion, 9/27/21, at 1-2 (extraneous capitalization and footnotes omitted).

On May 2, 2019, while still represented by counsel, Appellant filed pro se a notice of appeal and a post-sentence motion for reconsideration of sentence. This Court previously determined that, based upon the procedural posture of the case sub judice, "Appellant's pro se submissions did not offend the considerations of hybrid representation." Commonwealth v. Munro, 2021 WL 3560204, *3 (Pa. Super. 2021) (unpublished memorandum) (stating that, because the trial court provided Appellant's then-counsel with notice of Appellant's pro se submissions and Appellant's counsel subsequently filed a motion stating he "perfected [Appellant's] appellate rights," Appellant's then-counsel implicitly adopted the pro se submissions and, thus, Appellant's pro se submissions did not offend the considerations of hybrid representation). In so finding, this Court explained,

the trial court should have acted on Appellant's post-sentence motion. Commonwealth v. Cooper, 27 A.3d 994, 1008 (Pa. 2011) (holding that, a pro se notice of appeal filed before or contemporaneously with a timely post-sentence motion is deemed a premature pro se appeal and does not divest the trial court of jurisdiction to act on the post-sentence motion). Because the trial court did not dispose of this post-sentence motion within 120 days of its filing, Appellant's post-sentence motion was denied by operation of law pursuant to Pa.R.Crim.P. 720(B)(3)(a) on August 30, 2019. See Pa.R.Crim.P. 720(B)(3)(a) (stating, if the trial court fails to dispose of the post-sentence motion within 120 days of its filing, and has not granted a 30-day extension in which to do so, then the motion shall be deemed denied by operation of law).

A review of the trial court docket, however, reveals that the clerk of courts did not enter an order on behalf of the trial court setting forth that the post-sentence motion was denied by operation of law. Pa.R.Crim.P. 720(B)(3)(c) (stating, ``[w]hen a post-sentence motion is denied by operation of law, the clerk of courts shall forthwith enter an order on behalf of the [trial] court, and, as provided in [Pa.R.Crim.P.] 114, forthwith shall serve a copy of the order on the attorney for the Commonwealth, the defendant's attorney, or the defendant if unrepresented, that the post-sentence motion is deemed denied"). The failure of the clerk of courts to enter an order on behalf of the trial court setting forth that Appellant's post-sentence motion was denied by operation of law constitutes a break-down of the judicial system. Therefore, we deem Appellant's pro se notice of appeal to be filed on August 30, 2019, upon denial, by operation of law, of his post-sentence motion. Pa.R.A.P. 905(a)(5) (stating, "[a] notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the day thereof"). For the foregoing reasons, we conclude, by operation of the applicable procedural rules, that Appellant validly invoked our appellate jurisdiction through the filing of a timely notice of appeal from a judgment of sentence made final by the denial of a post-sentence motion.

Id. at *4 (footnote omitted). Ultimately, this Court remanded the case to the trial court, pursuant to Pa.R.A.P. 1925(c)(3), in order that Appellant's counsel, Steven F. O'Meara, Esquire ("Attorney O'Meara") could "file a Rule 1925(b) statement nunc pro tunc" and the trial court could subsequently file a Rule 1925(a) opinion. Id. at *5.

Appellant filed a Rule 1925(b) statement nunc pro tunc on August 25, 2021, and the trial court filed its Rule 1925(a) opinion on September 27, 2021.

Appellant raises the following issues for our review:

1. Did the trial court err in not finding that there was legally insufficient evidence to sustain a guilty verdict for firearms not to be carried without a license, possession of a firearm prohibited, and possession of a controlled substance with intent to deliver, where the testimony and evidence presented failed to prove beyond a reasonable doubt that Appellant possessed a firearm or controlled substances with the intent to distribute?

[2.] Did the assistant district attorney's conduct throughout the trial [constitute] prosecutorial misconduct? Specifically, [did] the consistent badgering of the victim, suggesting intimidation of the victim by [] Appellant and his agents, as well as the threats that the assistant district attorney would introduce a witness to testify that the victim was intimidated into not testifying, but [did not subsequently] present said witness [amount to] prosecutorial misconduct [that] was so [prejudicial and] egregious as to [prevent a fair trial and] require a dismissal of all criminal charges against the defendant?

Appellant's Rule 1925(b) Statement Nunc Pro Tunc, 8/25/21 (extraneous capitalization omitted).^[2] In his first issue, Appellant argues there was insufficient evidence to support his convictions. Appellant's Brief at 10-11.^[3] Specifically, Appellant contends there is insufficient evidence that he possessed a firearm or that he intended to distribute the controlled substance that was found in his possession. Id. Appellant asserts that "the evidence against him was strictly circumstantial" and that the Commonwealth failed to present evidence that he possessed a firearm. Id. at 10. Appellant argues that no firearm was found by the police "on his person or at [the] residence where he was [discovered]" shortly after the incident and, therefore, he could not be found to have possessed the firearm. Id. Appellant further contends that "the small quantity of marijuana (44 grams) and lack of significant other items" in his possession was insufficient to establish that he demonstrated the requisite intent to distribute the controlled substance. Id. Our standard and scope of review of a challenge to the sufficiency of the evidence are well-settled.

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 proof or 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 the evidence actually received must be considered. Finally, the trier[-]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.

Commonwealth v. Pappas, 845 A.2d 829, 835-836 (Pa. Super. 2004) (citation omitted), appeal denied, 862 A.2d 1254 (Pa. 2004); see also Commonwealth v. Brown, 52 A.3d 1139, 1163 (Pa. 2012) (stating that, in reviewing a claim of insufficient evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier[-]of[-]fact could have found the essential elements of the crime beyond a reasonable doubt" (emphasis in original)).

[T]he [trier-of-fact's] individualized assessment of the

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