Commonwealth v. Russell

209 A.3d 419

COMMONWEALTH of Pennsylvania

v.Christopher RUSSELL, Appellant

No. 1291 EDA 2017

Superior Court of Pennsylvania.

Argued February 12, 2019

Filed May 03, 2019

Stephanie R. Esrig, Philadelphia, for appellant.

Anne F. Palmer, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS, J.^*

OPINION BY LAZARUS, J.:

Christopher Russell appeals from the judgment of sentence, entered in the Court of Common Pleas of Philadelphia County, after a jury found him guilty of multiple counts of aggravated assault, robbery and related offenses. Upon careful review, we affirm.

During the time period of September 2008 through March 2009, Russell engaged in a string of violent robberies against nine victims, most of them elderly women, whom he had followed to their homes. Russell typically approached the women from behind, violently assaulted them, stole their handbags, and fled. All of the victims were able to provide a physical description of their assailant to the police, and many were able to describe the vehicle in which he fled from the scene. Russell's DNA was found on a cell phone dropped at the scene of one robbery, and the phone contained names and phone numbers contained in other phones owned by Russell. A bank statement belonging to one of the victims was found in the trash outside Russell's home. When Russell was arrested, he was wearing a cap identical to one that two victims described their assailant as having worn.

On June 21, 2010, a jury found Russell guilty of eight counts of aggravated assault,¹ nine counts of robbery,² seven counts of burglary,³ and one count of possession of marijuana.⁴ On August 9, 2010, the trial court sentenced Russell to an aggregate term of 63 to 126 years' incarceration. Russell appealed to this Court, which affirmed his judgment of sentence on July 16, 2012; the Pennsylvania Supreme Court denied allowance of appeal. On April 2, 2014, Russell filed a timely first petition under the Post Conviction Relief Act ("PCRA"); counsel was appointed and filed an amended petition seeking reinstatement of Russell's appellate rights nunc pro tunc .⁵ The PCRA court granted relief and Russell filed this timely appeal, nunc pro tunc , followed by a court-ordered statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). He raises the following claims for our consideration:

1. Whether the judgment of sentence must be vacated in light of Alleyne [v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013),] and its progeny as the Commonwealth invoked a mandatory penalty under 42 Pa.C.S. § 9717 at sentencing?

2. Whether the evidence was sufficient to support the convictions for aggravated assault as the evidence neither established that the victims suffered serious bodily injury nor that Mr. Russell intended to cause the same?

3. Whether a new trial must be ordered because the Commonwealth improperly joined the charge of possession of marijuana with the other transcripts in this case and in any event had no right to a jury trial for that charge?

4. Whether the evidence was in any event insufficient to support a conviction for possession of marijuana as the Commonwealth did not prove each and every element of the crime?

5. Whether the trial court erred in denying the motion to suppress identification insofar as the procedure utilized by law enforcement was unduly suggestive and violative of the Pennsylvania and United States Constitutions?

Brief of Appellant, at 8-9.⁶

Russell first claims that his judgment of sentence must be vacated pursuant to Alleyne , as the Commonwealth sought a mandatory minimum sentence under section 9717 of the Sentencing Code, which imposes mandatory minimum sentences in certain cases where the victim is over the age of 60.⁷ Russell was convicted of six counts of aggravated assault involving victims over the age of 60. For the following reasons, he is entitled to no relief.⁸

Here, the trial court explicitly stated that it did not sentence Russell under the mandatory minimum statute, but rather, sentenced him in accordance with the Sentencing Guidelines. See Trial Court Opinion, 3/19/18, at 14-15, citing N.T. Sentencing, 8/9/10, at 3-4, 12, 16-18. We have previously held that, where a trial court imposes sentence in accordance with the guidelines and does not sentence in accordance with a mandatory minimum sentencing scheme, an appellant is not entitled to relief under Alleyne .

In Commonwealth v. Samuel , 102 A.3d 1001 (Pa. Super. 2014), the defendant was convicted of drug trafficking offenses. At the time of his sentencing, 18 Pa.C.S.A. § 7508 provided for mandatory minimum sentences for drug trafficking convictions, and the length of the mandatory minimum depended on the amount of the drug involved. At sentencing, the Commonwealth presented evidence regarding the amount of cocaine Samuel possessed. Samuel argued that, pursuant to this Court's decision in Commonwealth v. Munday , 78 A.3d 661 (Pa. Super. 2013), in which we found that the imposition of the mandatory sentencing provision of 42 Pa.C.S. § 9712.1 violated Alleyne , it was for the jury, and not the trial court, to determine whether he possessed enough cocaine so as to implicate the mandatory minimum sentence statute. We rejected Samuel's claim, reasoning as follows:

As a general matter, Samuel is correct; any fact that could increase the proscribed range of penalties to which a defendant is exposed must be found by a jury. Munday , 78 A.3d at 664–666. The record is clear, however, that the trial court did not sentence him in accordance with mandatory minimum sentence provisions or any other enhancement that required a factual predicate before application. Rather, the record reveals that the trial court sentenced Samuel within the standard guideline ranges, which were substantially elevated because of Samuel's prior record score of five. Thus, although it was not for the trial court to make the determination as to how much cocaine Samuel possessed for purposes of determining whether mandatory minimum sentencing provisions applied, this error had no impact on Samuel's sentence. Samuel's challenge to the legality of his sentence fails.

Samuel , 102 A.3d at 1008. See also Commonwealth v. Zeigler , 112 A.3d 656 (Pa. Super. 2015) (addressing, sua sponte , legality of sentence where mandatory minimum statute existed for appellant's aggravated assault conviction, but concluding sentence not illegal on Alleyne grounds because court did not sentence based on mandatory minimum, but rather exceeded mandatory minimum sentence by applying guidelines).

In support of his claim, Russell cites this Court's decision in Commonwealth v. Mosley , 114 A.3d 1072 (Pa. Super. 2015), for the proposition that, even where a sentence exceeds that prescribed by a mandatory minimum, it is still invalid under Alleyne . Mosley is distinguishable and garners Russell no relief.

In Mosley , the appellant was sentenced under section 7508 of the Sentencing Code (imposing mandatory minimum based on weight of controlled substance possessed) after the trial court, in an attempt to comply with Alleyne , presented the jury with a special verdict form that included the following specific issue: "If you find the defendant guilty of Count 4(c): possession with intent to deliver, do you find the defendant guilty of possession with intent to deliver greater than 10 grams of cocaine?" Mosley , 114 A.3d at 1090.

This Court vacated Mosley's sentence, finding:

the trial court exceeded its authority by permitting the jury, via a special verdict slip, to determine beyond a reasonable doubt the factual predicate of section 7508—whether Mosley possessed cocaine that weighed greater than 10 grams. Even though the jury responded "yes" to the inquiry, the trial court performed an impermissible legislative function by creating a new procedure in an effort to impose the mandatory minimum sentence in compliance with Alleyne .

Mosley , 114 A.3d at 1091.

The facts of Mosley are clearly distinguishable from the case at bar. Contrary to Russell's claim, the length of the sentence imposed in Mosley was not a factor in this Court's analysis. Rather, we reversed solely on the basis that the sentencing court impermissibly utilized a special verdict slip in an attempt to impose a mandatory minimum that did not offend Alleyne . In contrast, in the matter sub judice , the sentencing court explicitly did not sentence Russell in accordance with the mandatory minimum, instead opting to impose a guideline sentence. Pursuant to Samuel and Zeigler , such a sentence is not illegal under Alleyne . Accordingly, Russell is entitled to no relief.

Russell next asserts that the evidence presented at trial was insufficient to support his convictions for aggravated assault as to victims Jean Kreamer, Kathleen Carey, and Joan Gaffner. Specifically, Russell asserts that the testimony of these victims did not establish that they suffered "serious bodily injury" within the meaning of 18 Pa.C.S.A. §§ 2301 and 2702(a). Nor, he claims, did the evidence prove that he attempted to cause such injury. Russell's claim fails.

A determination of evidentiary sufficiency presents a question of law. As such, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Sanchez , 614 Pa. 1, 36 A.3d 24, 37 (2011). In reviewing the sufficiency of the evidence, we must determine whether the evidence admitted at trial and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, were sufficient to prove every element of the offense beyond a reasonable doubt. Commonwealth v. Von Evans , 163 A.3d 980, 983 (Pa. Super. 2017). "[T]he facts and circumstances established by the Commonwealth need not preclude every possibility of innocence." Commonwealth v. Colon–Plaza , 136 A.3d 521, 525–26 (Pa. Super. 2016) (citation omitted). It is within the province of the fact-finder...