Commonwealth v. Walker

COMMONWEALTH OF PENNSYLVANIA, Appellee v. DARYLE MAURICE WALKER, Appellant

J-S73009-14

No. 343 MDA 2014

SUPERIOR COURT OF PENNSYLVANIA

DECEMBER 8, 2014

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence September 27, 2013

In the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-CR-0000250-2013

BEFORE: BOWES, WECHT, and MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:

Daryle Maurice Walker appeals from the judgment of sentence of three to six years incarcaration imposed by the trial court after a jury found him guilty of possession with intent to deliver ("PWID") 3.3 grams of cocaine. After careful review, we are constrained to vacate the judgment of sentence and remand for resentencing.

Troopers Shawn Wolfe and Christopher Keppel, utilizing a confidential informant ("CI"), set up a controlled drug buy for an eight ball of cocaine on September 11, 2012. The CI was searched and provided with pre-recorded money to make the purchase. Trooper Keppel observed the CI enter a dark BMW. The only other individual in the car was the driver, who at that time Trooper Keppel could only describe as an African-American male. The CI returned to Trooper Keppel's vehicle and provided him with the cocaine theCI purchased. The amount of cocaine was 3.3 grams, and Appellant stipulated at trial to the weight of the drugs involved.

Trooper Keppel watched the vehicle before it left his view for a brief period. He then passed the vehicle and recognized the driver as Appellant. Trooper Keppel had known Appellant since 2005 or 2006. Similarly, Trooper Wolfe knew Appellant since 2007. In addition, Trooper Wolfe set up surveillance for the drug buy from a different vantage point. He witnessed the CI walking towards his location. Trooper Wolfe then saw Appellant drive by in a dark BMW and pull over. According to Trooper Wolfe, he observed the CI enter the car with Appellant, who was fifteen to twenty yards away. Trooper Wolfe maintained that the CI did not interact with any other individuals before returning to Trooper Keppel's location. Following the CI's exit of Appellant's vehicle, Trooper Wolfe followed Appellant and obtained his license plate number. The vehicle was registered to Appellant's mother.

Since trial in this matter took place after Alleyne v. United States, 133 S.Ct. 2151 (2013), the Commonwealth, without objection, requested that the jury be asked to determine the amount of drugs involved. As noted, Appellant did not dispute the amount of drugs recovered and, in fact, stipulated that the weight of the drugs was 3.3 grams. At the time, Appellant was aware of the Alleyne decision. The jury found Appellant guilty and, consistent with the stipulation, indicated that the amount ofcocaine recovered weighed between two and ten grams. The trial court sentenced Appellant to a mandatory minimum.

Appellant filed a timely post-sentence motion on October 2, 2013, contending that his mandatory sentence was illegal because the statute removed the court's sentencing discretion. No specific Alleyne challenge was forwarded. In addition, Appellant raised a weight of the evidence claim. The court did not enter an order denying the motion and Appellant filed a notice of appeal on February 20, 2014. The trial court directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant complied, and the trial court issued a short order directing this Court to the transcript of Appellant's trial and sentencing.

In the meantime, this Court ordered Appellant to show cause why his appeal should not be dismissed as premature. Appellant filed an answer indicating that he filed a praecipe with the trial court to enter an order denying his post-sentence motion by operation of law. On May 21, 2014, the court entered that order. Thus, this appeal is properly before this Court. Pa.R.A.P. 905(a)(5). Appellant now raises the following issues on appeal.

I. The mandatory sentence of three to six years as imposed by th[e] Honor[a]ble [Court] was unconstitutional in that such a mandatory sentence by th[e] Honorable Court [removed] any discretion in imposing sentence and vests with the Commonwealth all sentencing authority.

II. The jury's verdict was against the greater weight of the evidence so as to shock one's conscience on the following grounds: the evidence presented at trial clearly established that the Commonwealth witnesses could not have made a

reliable identification of the Defendant in that there [sic] view was obstructed; the evidence presented at trial clearly established that the Commonwealth witnesses could not have made a reliable identification of the Defendant in that they did not observe the individual for sufficient amount of time; other than the unreliable identification of the Defendant, there is no other competent evidence that the Defendant committed the offense.

III. The evidence at trial was insufficient to support the jury verdict and therefore th[e] Honorable Court erred in not arresting judgment and vacating the judgment of sentence on the following grounds: the evidence presented at trial clearly established that the Commonwealth witnesses could not have made a reliable identification of the Defendant in that there [sic] view was obstructed; the evidence presented at trial clearly established that the Commonwealth witnesses could not have made a reliable identification of the Defendant in that they did not observe the individual for sufficient amount of time; other than the unreliable identification of the Defendant, there is no other competent evidence that the Defendant committed the offense.

Appellant's brief at 5.

Since a sufficiency claim would entitle Appellant to complete discharge, we address that issue at the outset. Commonwealth v. Stokes, 38 A.3d 846 (Pa.Super. 2012). In conducting a sufficiency of the evidence review, we view all of the evidence admitted, even improperly admitted evidence. Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc). We consider such evidence in a light most favorable to the Commonwealth as the verdict winner, drawing all reasonable inferences from the evidence in favor of the Commonwealth. Id. When evidence exists to allow the fact-finder to determine beyond a reasonable doubt each element of the crimes charged, the sufficiency claim will fail. Id.

The evidence "need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented." Id. In addition, the Commonwealth can prove its case by circumstantial evidence. Where "the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances[,]" a defendant is entitled to relief. This Court is not permitted "to re-weigh the evidence and substitute our judgment for that of the fact-finder." Id.

Appellant asserts that the troopers' identification testimony "must be viewed with caution in that both [t]roopers only had a brief period of time to view the individual and their views [were] obstructed by tinted windows, which rendered them in a position not to have a good opportunity to view the individual." Appellant's brief at 16.¹ Here, the troopers identified Appellant as the person in the BMW and described how they observed him.The jury was free to accept this testimony and believe that the troopers did not mistakenly identify him. Appellant's sufficiency claim is without merit.

Appellant's second challenge is to the weight of the evidence. Since a successful weight claim would warrant a retrial and render any sentencing challenge moot, we address that issue before reaching Appellant's sentencing argument. A weight claim must be preserved in a timely post-sentence motion. Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa.Super. 2012). "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." Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (italics in original). Accordingly, "[o]ne 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." Id.

A trial judge should not grant a new trial due to "a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion." Id. Instead, the trial court must examine whether "'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.'" Id. Only where the jury verdict "is so contrary to the evidence as to shock one's sense of justice" should a trial court afford a defendant a new trial. Id. A weight of the evidence issue concedes that sufficient evidencewas introduced. Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa.Super. 2006).

Appellant's weight claim is devoid of any merit. The only testimony in this case was provided by the Commonwealth witnesses: Troopers Wolfe and Keppel. Their testimony was consistent with one another and they did not contradict themselves. There were simply no facts to weigh against the testimony of the troopers. Rather, Appellant's position hinges on this Court rejecting the jury's credibility determination that the troopers testified accurately. Since there is not a conflict in the evidence, Appellant's issue fails.

Appellant also now contends that his sentence is unconstitutional under Alleyne.² He contends for the first time, despite Alleyne having been decided at the time of Appellant's trial, that Alleyne requires the facts necessary to invoke a mandatory sentence be included in the criminal information. Since the weight of the drugs, though stipulated to and decided by the jury on its verdict slip without...