Commonwealth v. Terry

1

COMMONWEALTH OF PENNSYLVANIA v. KENNETH TERRY Appellant

No. 78 WDA 2023

No. J-A18040-23

Superior Court of Pennsylvania

September 1, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered August 19, 2022 In the Court of Common Pleas of Lawrence County Criminal Division at No(s): CP-37-CR-0000444-2021

BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.

MEMORANDUM

KUNSELMAN, J.

Kenneth Terry appeals from the judgment of sentence entered following his convictions for four counts of possession with intent to deliver and one count of possession of drug paraphernalia. 35 P.S. § 780-113(a)(30), (a)(32). We affirm the convictions but remand for the trial court to correct a partially illegal sentence.

The trial court recounted the factual history of this case as follows:

On May 26, 2021, law enforcement for Lawrence County was contacted by the management of . . . an extended stay hotel in Union Township, Lawrence County, Pennsylvania. The management reported possible drug-related activity on the premises. The management became suspicious upon witnessing a large amount of foot traffic coming and going, specifically from Rooms 110, 111, and 202. Records supplied by the management indicated that these rooms were rented by individuals giving the names Bob Marley, Giovanni Johnson and Angela Ragen, respectively. The rooms were paid for with cash.

Detective Richard Ryhal viewed historical surveillance and conducted live surveillance from the view of the camera placed in the hallway of Rooms 110 and 111, the doors to which were located across from each other. As a result of his surveillance Detective Ryhal observed multiple individuals arriving at Room 111, entering, staying inside for a few minutes, and then leaving Room 111 and the hotel. Further, a black male was observed walking between Rooms 110 and 111 between the visits of the individuals. The black male was seen carrying various items, including ice and cooking utensils. As Detective Ryhal testified, the totality of these observations is consistent with an indication of narcotics dealing. A search warrant was consequently applied for and granted at approximately 5:30 P.M. on May 26, 2021.

At approximately 6:45 P.M. on May 26, 2021, law enforcement made entry into the hallway of Rooms 110 and 111 at [the hotel] in order to execute the aforementioned search warrant. Simultaneously, [Terry] and his co-defendant [Keyon Lee] appeared in the doorway of Room 111 and spotted law enforcement entering. [Terry] and [Lee] then attempted to flee down the opposite end of the "L"-shaped hallway. Unbeknownst to [Terry], law enforcement had entered on both ends of the hallway, and [Terry] and [Lee] were quickly detained. A variety of bills were observed being discarded as the duo fled, however neither law enforcement nor the surveillance footage could definitively attribute the abandoned currency specifically to [Terry] or [Lee]. On [Terry's] person at the time of his arrest was $28.00 in cash, a cell phone, a handheld video game player, and three room keys (two for Room 202, one for Room 111). Paperwork containing [Terry's] name was discovered in Room 202, however this was the only property specifically attributable to [Terry] from the three rooms searched.

Inside Room 110, law enforcement recovered 56.3 gross grams of suspected crack cocaine; $51,836.00 in cash; a cell phone; a smart watch; a bag of suspected marijuana; and two spoons covered in suspected cocaine residue.

Inside Room 111, law enforcement recovered three bags of suspected heroin, totaling 64 gross grams; two bags of suspected crack cocaine, totaling 44.2 grams; a digital weigh scale; a handgun; a bag of suspected marijuana; and multiple cell phones.

Inside Room 202, law enforcement recovered a blender with suspected drug residue; a foil pan; $60,000.00 in cash; and the aforementioned paperwork containing [Terry's] name.

Trial Court Opinion, 3/1/23, at 4-6.

The case proceeded to trial beginning June 14, 2022. Relevantly, the hotel property manager testified that Terry had accompanied two of the other individuals when they paid for the hotel rooms with cash and frequented the hotel "[j]ust about every day" for four weeks before his arrest. N.T., 6/14/22, at 28. For a week or two, Terry would go between the three rooms with the same McDonald's bag "multiple times a day." Id. at 29-30.

In his closing argument, Terry urged the jury to consider deficiencies in the investigation:

Think about this: We are one year later -- over one year later, and we don't have anybody coming forth saying, Mr. Terry sold me drugs on that day. We don't have a confidential informant saying this is what happened. We don't have, prior to them making their arrest, them setting up any undercover officer to see what was happening. We don't have any controlled buys to see if Mr. Terry was an individual who was selling any controlled substances.

We don't have -- we have the suspicion, but we have people who are leaving, we don't have the officers stopping, which, by the way, it's not just Detective Ryhal and Detective Ferrucci, it's the Lawrence County Drug Task Force. It's officers from Union. There are multiple officers available. None of them stopping and asking, hey, what's going on? None of them saying, some guy with dreads sold me drugs. We got none of that.

We don't have a K-9 officer walking through the parking lot, confirming that -- having a hit that this person who just walked in there when Mr. Terry was alone now has drugs on him. We don't have anything of that nature. It's one year later. We're at trial. They don't have the evidence, because it's not there.

N.T., 6/17/22, at 12-13 (emphasis added).

The assistant district attorney objected, stating that the parties had agreed not to address whether task force members spoke with anyone who visited the hotel room where the drugs were sold. Id. at 16-17.^[1] On the Commonwealth's motion, the trial court struck the objected-to portion of the argument and provided the following instruction:

I'm going to ask the jury to strike from your consideration the comments of [trial counsel] that the Lawrence County Drug Task Force did not speak to any of the individuals that went into Room 111 that day and received information that [Terry] was dealing drugs. So if you'll just strike that from your consideration, then, and we'll hear from [the Commonwealth].

Id. at 22. Although Terry objected to the curative instruction, he did not move for a mistrial.

The jury convicted Terry of all five charges. On August 19, 2022, Terry received his sentence, an aggregate of 8 to 16 years of imprisonment. The trial court amended the restitution amount of Terry's sentence on September 6, 2022. Terry filed post-sentence motions, which the trial court denied on January 11, 2023.

On January 18, 2023, Terry filed a notice of appeal. Terry and the trial court complied with Pennsylvania Rule of Appellate Procedure 1925. The Commonwealth did not file an appellate brief.

Terry challenges four actions of the trial court:

I. Whether the trial court erred and abused its discretion in denying [Terry's] post-sentence motion, by finding that the jury's verdict was based on evidence sufficient to sustain his convictions beyond a reasonable doubt?

II. Whether the trial court erred and abused its discretion in failing to declare a mistrial, sua sponte, upon the [occurrence] of what [Terry] alleges was a Brady violation?

III. Whether the trial court erred and abused its discretion in sentencing [Terry] consecutively, rather than concurrently, resulting in an unreasonable and excessive sentence?

IV. Whether the trial court erred and abused its discretion in denying [Terry's] post-sentence motion, by finding that the jury's verdict was not against the weight of [the] evidence?

Terry's Brief at 8-9 (capitalization omitted).

I.

Terry first challenges the sufficiency of the evidence at all counts. He argues that his mere presence in a room with drugs, as well as his attempt to flee when the police arrived, are legally insufficient to prove that he possessed the drugs and paraphernalia. He notes that the Commonwealth did not call the other people in the hotel to testify. Rather, Terry contends that the only support for his involvement in the drug distribution is based on speculation and conjecture. Therefore, he concludes that the trial court erred in denying his post-sentence motion for judgment of acquittal.

Whether sufficient evidence exists to support the verdict is a question of law; our standard of review is de novo and our scope of review is plenary. We review the evidence in the light most favorable to the verdict winner to determine whether there is sufficient evidence to allow the factfinder to find every element of a crime beyond a reasonable doubt.

Commonwealth v. Bathurst, 288 A.3d 492, 500 (Pa. Super. 2023) (quoting Commonwealth v. Tejada, 107 A.3d 788, 792 (Pa. Super. 2015) (brackets omitted).

In applying the above test, we may not weigh the evidence and substitute our judgment for that of 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 factfinder,

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