Com. v. Kenny, J.

• Court: Superior Court of Pennsylvania
• Decided: September 26, 2014
• Docket: 71 WDA 2014
• Status: Unpublished

Opinion

J-S58020-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JODY L. KENNY,

Appellant No. 71 WDA 2014

Appeal from the Judgment of Sentence Entered July 5, 2012 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0003920-2010

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 26, 2014

Appellant, Jody L. Kenny, appeals from the judgment of sentence of 2-

delivery of a controlled substance. After careful review, we vacate the

judgment of sentence and remand for resentencing.

The trial court summarized the facts adduced at trial as follows:

Detective Fontana of the Greensburg Police Department testified that he conducted surveillance on a residence as part of an investigation headed by Detective Vernail. The first transaction took place on May 6, 2009. The occupants of a first floor apartment located at 135 East Pittsburgh Street were [Appellant] and her Husband. The detective watched as the

talked for a minute. Then, the [C.I.] went back to Detective Vernail's car. Fontana had a good vantage point during the ____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S58020-14

encounter took place on three separate occasions and all of the

location. Essentially, the [C.I.] went up onto the porch, they briefly spoke, and then he handed [Appellant] money and she handed him a package and he went off the porch and back to Detective Vernal. Each time, Fontana was conducting surveillance and thus he was able to positively identify [Appellant].

Thomas Warren, the [C.I.], testified that he came into contact with Detective Jerry Vernail and agreed to cooperate with him in his efforts to combat drug trafficking in the city of Greensburg. He knew of the East Pittsburgh street address as the residence of a drug distributor. He was aware of this fact because his ex-girlfriend would purchase drugs from [Appellant].

According to Mr. Warren[,] the narcotic pill he was purchasing was called opana. The cost per pill was either $15.00 or $20.00. He made arrangements over the phone with [Appellant] to purchase the narcotic pills. Mr. Warren was searched both before and after the purchases from [Appellant]. He provided all the cash the detective gave him to [Appellant] and he gave the detective all the opana that she had given to him on each occasion. The third and final transaction took place on June 3, 2009.

Trooper Gregg Norton and Detective Jerry Vernail were involved in surveillance of the three drug transactions. Each time the same scenario unfolded. The [C.I.] would go up onto

narcotic pills.

Analysis of the pills was conducted by Maxine Oleyar, a Forensic Scientist II with the Pennsylvania State Police Crime Lab at Greensburg. Her analysis of the pills indicated that they were oxymorphone, a Schedule II Controlled Substance (the generic term being opana).

Trial Court Opinion, 12/4/13, at 2-4 (internal citations omitted).

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On December 9, 2011, following a jury trial, Appellant was convicted

of three counts of delivery of a controlled substance (Delivery), 35 P.S. §

780-113(a)(30). Appellant was sentenced on July 5, 2012, to an aggregate

term of 2- id not initially file a post-sentence

motion or a direct appeal. However, on July 29, 2013, the trial court

entered an order reinstating her direct appeal rights nunc pro tunc.

Appellant then filed a post-sentence motion on August 8, 2013. That motion

was denied on December 4, 2013. The trial court also issued an opinion on

-sentence

motion. Appellant then filed a timely notice of appeal on January 2, 2014.

On January 27, 2014, App

for a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The

ispositive with

respect to all the issues raised by Appellant in her Rule 1925(b) statement.

Appellant now presents the following questions for our review:

I. post-sentence motion for a judgment of acquittal based upon a verdict contrary to the sufficiency of the evidence, for the reason that there was insufficient evidence to support the guilty verdicts for the offense of [Delivery] at

II. Whether the tri post-sentence motion for a new trial, for the reason that the guilty verdicts for the offense of [Delivery] at counts 1,

to the weight of the evidence?

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III. Whether post-sentence motion for a new trial, for the reason that trial counsel was ineffective by failing to move for a mistrial on the basis that certain members of the jury demonstrated that they were biased again

-8. We will address these claims ad seriatum, and

conclude our review with a sua sponte examination of the legality of

Sufficiency

cy of the

evidence underlying her conviction for three counts of Delivery. Our

standard of review of sufficiency claims is well-settled:

A claim challenging the sufficiency of the evidence is a question of law. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Where the evidence offered to support the verdict is in contradiction to the physical facts, in contravention to human experience and the laws of nature, then the evidence is insufficient as a matter of law. When reviewing a sufficiency claim[,] the court is required to view the evidence in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

In her brief, Appellant cites the appropriate standard of review, as well

as the statute defining her Delivery offenses, 35 P.S. § 780-113(a)(30).

However, her argument in support of the sufficiency claim is merely a bald

assertion that the evidence is insufficient:

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Appellant argues that the evidence which was presented at trial was insufficient to establish that she delivered a controlled substance, namely [o]pana pills, to the Confidential Informant on any of the three (3) criminal incident dates in question. It is maintained that the Commonwealth did not present sufficient evidence to sustain a conviction for the [Delivery] offenses charged in Counts 1, 2 and 3 of the Commonwealth's Information.

-14.

This is the functional equivalent of no argument at all. Moreover,

Appellant does not cite to any authority in support of the proposition that the

evidence was insufficient in this case, see

claim, see Accordingly,

Weight of the Evidence

the evidence.

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. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence. One of the least assailable reasons

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.

However, the exercise of discretion by the trial court in granting or denying a motion for a new trial based on a challenge to the weight of the evidence is not unfettered. The

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propriety of the exercise of discretion in such an instance may be assessed by the appellate process when it is apparent that there was an abuse of that discretion. This court summarized the limits of discretion as follows:

wisdom and skill so as to reach a dispassionate conclusion, within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused 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, prejudice, bias or ill will.

Widmer, 744 A.2d 745, 753 (Pa. 2000) (internal citations omitted).

testified

and that it would have been possible for him to have stolen some of her pills

on the occasions when he visited her residence. Id. at 15. Thus, Appellant

Id.

e assertion that

the jury should have believed her testimony over that of the

[a] new trial should not be granted because of a mere conflict in testimony or because the trial judge on the same facts would have arrived at a different conclusion. Nor should it ordinarily be granted on the ground that the verdict was against the weight of the evidence where the evidence is conflicting and the jury might have found for either party.

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Eisert v. Jones, 182 A.2d 717, 720 (Pa. 1962).

weight of

the evidence claim does not entitle her to relief.

Ineffective Assistance of Counsel

tiveness. We are precluded from reviewing this claim under

the general rule espoused by our Supreme Court in Commonwealth v.

Grant

a general rule, a petitioner should wait to raise claims of ineffective

Id. at 738. Recently, in

Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme Court

recognized the existence of only two exceptions to the rule announced in

Grant. First, a trial court may address ineffectiveness claims where such

Holmes, 79

A.3d at 563. Second,

with respect to other cases an seeks to litigate multiple or prolix claims of counsel ineffectiveness, including non-record-based claims, on post- verdict motions and direct appeal, we repose discretion in the trial courts to entertain such claims, but only if (1) there is good cause shown, and (2) the unitary review so indulged is preceded by the defendant's knowing and express waiver of his

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entitlement to seek PCRA[1] review from his conviction and sentence, including an express recognition that the waiver subjects further collateral review to the time and serial petition restrictions of the PCRA.

Holmes, 79 A.3d at 563-64 (footnote omitted).

Appellant has not asserted the applicability of either of these

exceptions, nor is there anything in the record that suggests their

claim at this time. However, we do so without prejudice to her ability to

raise it in a future PCRA petition.

Illegal Sentence

for three counts of Delivery in this

case, the Commonwealth sought imposition of mandatory minimum

sentences for two of those counts pursuant to 18 Pa.C.S. § 7508. See

at 1-2. The trial court indicates that these mandatory

our review of the trial transcripts, we can ascertain that the jury empaneled

in this case did not make the determination regarding whether the facts

adduced at trial supported the imposition of the mandatory minimum

sentences imposed by the court. See N.T., 12/8/11-12/9/11, at 198

(wherein the trial court described the content of the verdict slip to the jury).

____________________________________________

1 Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq.

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This indicates that the mandatory sentences imposed in this case were

illegal.

of right, is non-waivable, and may be entertained so long as the reviewing

Commonwealth v. Robinson, 931 A.2d 15, 19 20

(Pa. Super. 2007) (en banc

reviewed sua sponte Commonwealth v. Archer, 722 A.2d

203, 209 (Pa. Super. 1998).

In Commonwealth v. Thompson, 93 A.3d 478 (Pa. Super. 2014),

that mandatory sentence were not determined by the fact-finder nor proven

Id. Thus, the Thompson

Alleyne v. United States, 133 S.Ct. 2151 (2013).

According to the Alleyne Court, a fact that increases the sentencing floor is an element of the crime. Thus, it ruled that facts that mandatorily increase the range of penalties for a defendant must be submitted to a fact-finder and proven beyond a reasonable doubt. The Alleyne decision, therefore, renders those Pennsylvania mandatory minimum sentencing statutes that do not pertain to prior convictions constitutionally infirm insofar as they permit a judge to automatically increase a defendant's sentence based on a preponderance of the evidence standard.

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Commonwealth v. Watley, 81 A.3d 108, 117 (Pa. Super. 2013) (footnote

omitted).

In Watley, we held that Alleyne

necessarily implicated Pennsylvania's legality of sentencing construct since it held that it is improper to sentence a person to a mandatory minimum sentence absent a jury's finding of facts that support the mandatory sentence. Application of a mandatory minimum sentence gives rise to illegal sentence concerns, even where the sentence is within the statutory limits. Legality of sentence questions are not waivable and may be raised sua sponte by this Court.

Watley, 81 A.3d at 117 18 (footnotes and citations omitted).

In the present case, the Commonwealth sought imposition of

mandatory sentences because

Counts Two and Three of the Bill of Information involve two or more grams of a Schedule I or II narcotic thereby mandating a minimum period of incarceration of two years in a state correctional institution and a five thousand dollar ($5,000.00) fine pursuant to Section 7508 of the Crimes Code.

Notice, at 1-2.

Although the Commonwealth failed to cite the specific provision of 18

Pa.C.S. § 7508 in the Notice, we can deduce that the Commonwealth was

referring to Section 7508(a)(2)(i), which reads as follows:

(2) A person who is convicted of violating section 13(a)(14), (30) or (37) of The Controlled Substance, Drug, Device and Cosmetic Act where the controlled substance or a mixture containing it is classified in Schedule I or Schedule II under section 4 of that act and is a narcotic drug shall, upon conviction, be sentenced to a mandatory minimum term of imprisonment and a fine as set forth in this subsection:

(i) when the aggregate weight of the compound or mixture containing the substance involved is at least 2.0 grams

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and less than ten grams; two years in prison and a fine of $5,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal

18 Pa.C.S. § 7508(a)(2)(i).

Thus, synthesizing the dictates of Alleyne with the terms of Section

incarceration and a $5000 fine, the Commonwealth was required to prove to

the jury, beyond a reasonable doubt, that Appellant sold at least 2.0 grams

of a Schedule I or Schedule II narcotic. It is apparent from the record that

the jury was not asked to determine whether the Commonwealth met this

burden, nor is there any evidence that Appellant conceded the matter.

Consequently, the imposition of the mandatory sentence in this case was

illegal under the dictates of Alleyne

sentence and remand this case for resentencing.

Judgment of sentence vacated. Case remanded for resentencing

consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/26/2014

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