Com. v. Tucker, L.

Opinion

J-S24007-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

LYKEITH TUCKER

Appellant No. 1580 EDA 2014

Appeal from the Judgment of Sentence January 10, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004984-2012

BEFORE: GANTMAN, P.J., ALLEN, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 12, 2015

Appellant, Lykeith Tucker, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his jury

trial convictions for possession of a controlled substance with the intent to

deliver (“PWID”), conspiracy to commit PWID, firearms not to be carried

without a license, carrying firearms on public streets or public property in

Philadelphia, and possessing instruments of crime (“PIC”); and his bench

trial conviction for persons not to possess firearms.1 We affirm Appellant’s

convictions but vacate and remand for resentencing.

In its opinion, the trial court set forth the relevant facts and procedural

____________________________________________

1 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 903 (35 P.S. § 780-113(a)(30) related); 6106; 6108; 907; 6105, respectively. J-S24007-15

history of this case. Therefore, we have no reason to restate them.2 We

add only that Appellant timely filed post-sentence motions on January 12,

2014, which the court denied by operation of law on May 14, 2014.

Appellant timely filed a notice of appeal on May 27, 2014. On May 29, 2014,

the court ordered Appellant to file a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b), which Appellant timely filed on

June 6, 2014.

Appellant raises four issues for our review:

WHETHER THE EVIDENCE WAS INSUFFICIENT TO SUPPORT APPELLANT’S CONVICTIONS FOR CONSPIRACY, PWID, VUFA 6105, 6106, AND 6108?

WHETHER THE JURY’S VERDICT WAS SO INCONSISTENT AS TO REQUIRE ACQUITTAL ON ALL THE PWID CHARGES?

WHETHER THE TRIAL COURT’S SENTENCE WAS EXCESSIVE DUE TO APPELLANT’S YOUNG AGE?

WHETHER THE TRIAL COURT’S APPLICATION OF THE MINIMUM MANDATORY SENTENCE WAS UNCONSTITUTIONAL?

(Appellant’s Brief at 4).3

Initially, we observe:

____________________________________________

2 The jury returned a verdict on September 19, 2013 (not September 12, 2013). Also, the court sentenced Appellant to five to ten years’ imprisonment for PWID; the court did not impose a period of probation for Appellant’s PWID conviction. 3 Appellant also challenges the sufficiency of the evidence to sustain his conviction for PIC in his first issue on appeal.

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[G]enerally…issues not raised in a Rule 1925(b) statement will be deemed waived for review. An appellant’s concise statement must properly specify the error to be addressed on appeal. In other words, the Rule 1925(b) statement must be specific enough for the trial court to identify and address the issue an appellant wishes to raise on appeal. A concise statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no concise statement at all. The court’s review and legal analysis can be fatally impaired when the court has to guess at the issues raised. Thus, if a concise statement is too vague, the court may find waiver.

Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa.Super. 2011), appeal

denied, 613 Pa. 642, 32 A.3d 1275 (2011) (internal citations and quotation

marks omitted). Additionally, “when challenging the sufficiency of the

evidence on appeal, the [a]ppellant’s [Rule] 1925 statement must ‘specify

the element or elements upon which the evidence was insufficient’ in order

to preserve the issue for appeal.” Commonwealth v. Gibbs, 981 A.2d

274, 281 (Pa.Super. 2009), appeal denied, 607 Pa. 690, 3 A.3d 670 (2010)

(quoting Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa.Super.

2008)). “Such specificity is of particular importance in cases where…the

[a]ppellant was convicted of multiple crimes each of which contains

numerous elements that the Commonwealth must prove beyond a

reasonable doubt.” Gibbs, supra (holding appellant waived challenge to

sufficiency of evidence where appellant failed to specify in Rule 1925(b)

statement which convictions, and which elements of those crimes, he was

challenging on appeal; fact that trial court addressed appellant’s sufficiency

claim in its opinion was of no moment to waiver analysis).

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Instantly, Appellant presented his sufficiency claim in his Rule 1925(b)

statement as follows: “[T]he evidence was insufficient to convict [Appellant]

of all charges, which is further strengthened by the jury’s split verdict.”

(Appellant’s Rule 1925(b) Statement, filed 6/6/14, at 1). Significantly,

Appellant failed to specify which elements of each of his convictions he

sought to challenge on appeal. See id. The fact that the trial court

addressed Appellant’s sufficiency claims in its opinion is immaterial. Id.

Appellant’s failure to specify in his Rule 1925(b) statement the precise bases

for his sufficiency claims waives Appellant’s first issue on appeal. See

Hansley, supra; Gibbs, supra.

Moreover, after a thorough review of the record, the briefs of the

parties, the applicable law, and the well-reasoned opinion of the Honorable

Lisette Shirdan-Harris, we conclude that even if Appellant had properly

preserved his first issue on appeal in his concise statement, it would still

afford Appellant no relief. The trial court opinion comprehensively discusses

and properly disposes of Appellant’s sufficiency challenge. The trial court

opinion likewise thoroughly addresses and correctly resolves Appellant’s

second issue on appeal concerning the jury’s alleged inconsistent verdicts.

(See Trial Court Opinion, filed August 15, 2014, at 4-8; 9-10) (finding: (1)

regarding Appellant’s PWID conviction, at time of Appellant’s arrest, police

recovered on Appellant’s person eight packets of crack cocaine, eleven

packets of marijuana, and loaded firearm; additionally, police observed

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Appellant’s accomplice exchange crack cocaine for cash with two buyers, just

prior to Appellant’s arrest; Appellant used two accomplices to distribute

crack cocaine from his drug stash to prevent officers from observing

Appellant physically exchange drugs with buyers; Officer Stewart saw

Appellant go into alley where officer believed Appellant kept his drug stash;

shortly after emerging from alley, police arrested Appellant and found drugs

and firearm on his person; regarding Appellant’s conspiracy conviction,

Officer Stewart watched Appellant’s accomplice take cash from two

individuals, walk into alley where officer suspected Appellant and his

accomplices hid drug stash, and return with packets of crack cocaine;

backup officers arrested Appellant after he later emerged from alley, and

recovered on Appellant’s person loaded firearm and same type of crack

cocaine that Appellant’s accomplice had distributed to buyers; regarding

Appellant’s PIC conviction, police recovered loaded handgun on Appellant’s

person, as well as multiple packets of marijuana and crack cocaine; evidence

demonstrated Appellant carried loaded firearm to protect his drug stash,

showing Appellant’s intent to employ firearm criminally; regarding

Appellant’s conviction for persons not to possess firearms, Appellant has

record for previous PWID offense,4 so he is ineligible to possess firearm;

____________________________________________

4 The parties stipulated Appellant had juvenile adjudications for PWID, firearms not to be carried without a license, and possession of a firearm by a minor.

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regarding Appellant’s conviction for firearms not to be carried without

license, Appellant lacked valid license to carry firearm;5 regarding

Appellant’s conviction for carrying firearms on public streets or public

property in Philadelphia, Appellant had no license to carry firearm, and police

arrested Appellant on public street in Philadelphia and recovered loaded

firearm on Appellant’s person; Commonwealth presented sufficient evidence

to sustain each of Appellant’s convictions; (2) police conducted surveillance

of Appellant’s drug activities on February 22, 2012, and February 23, 2012;

Officer Stewart testified he observed Appellant selling drugs on February

22nd, but police were unable to apprehend Appellant or recover physical

evidence on Appellant’s person that night because Appellant fled scene; jury

acquitted Appellant of crimes related to events of February 22 nd; by

contrast, police were able to apprehend Appellant on February 23 rd after

Officer Stewart saw Appellant and his accomplices participate in two drug

deals; police recovered crack cocaine, marijuana, and loaded firearm on

Appellant’s person that evening; jury determined Commonwealth presented

sufficient evidence to convict Appellant on all charges related to events of

February 23rd; verdicts were not inconsistent, and Appellant’s claim merits

no relief). Accordingly, Appellant’s first issue is waived based on his vague

concise statement. Even if Appellant had properly preserved his sufficiency ____________________________________________

5 The parties also stipulated Appellant did not have a license to carry a firearm.

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claim, his first issue would still afford no relief. With respect to Appellant’s

second issue on appeal, we affirm on the basis of the trial court’s opinion.6

In his third issue on appeal, Appellant asserts he was twenty years old

at the time he committed the offenses at issue, and twenty-two years old at

the time of sentencing. Appellant argues the trial court should have

considered Appellant’s relative youth when fashioning Appellant’s sentence.

Appellant explains the court imposed an aggregate sentence of seven (7) to

fourteen (14) years’ imprisonment, plus five (5) years’ probation. Appellant

indicates the trial court reasoned the sentence was appropriate based on

Appellant’s “questionable rehabilitative potential.” Appellant suggests no

one as young as Appellant is beyond rehabilitation. Appellant insists the

court’s remarks about Appellant’s “questionable rehabilitative potential”

demonstrate the court failed to consider Appellant’s young age upon

sentencing. As presented, Appellant’s claim implicates the discretionary

aspects of sentencing. See Commonwealth v. Berry, 785 A.2d 994

(Pa.Super. 2001) (explaining allegation that court failed to consider specific

mitigating factor implicates discretionary aspects of sentencing);

Commonwealth v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal

denied, 544 Pa. 653, 676 A.2d 1195 (1996) (stating claim that court ignored

mitigating factors challenges sentencing court’s discretion). ____________________________________________

6 The correct citation for Commonwealth v. Devine is 26 A.3d 1139 (Pa.Super. 2011), appeal denied, 615 Pa. 783, 42 A.3d 1059 (2012).

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Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right. Commonwealth v. Sierra, 752 A.2d 910

(Pa.Super. 2000). Before we review a discretionary aspects of sentencing

claim:

[W]e conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006).

When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by including in his brief a

separate concise statement demonstrating that there is a substantial

question as to the appropriateness of the sentence under the Sentencing

Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);

Pa.R.A.P. 2119(f). “The requirement that an appellant separately set forth

the reasons relied upon for allowance of appeal furthers the purpose evident

in the Sentencing Code as a whole of limiting any challenges to the trial

court’s evaluation of the multitude of factors impinging on the sentencing

decision to exceptional cases.” Commonwealth v. Williams, 562 A.2d

1385, 1387 (Pa.Super. 1989) (en banc) (emphasis in original) (internal

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quotation marks omitted). Failure of the defendant to include the requisite

Rule 2119(f) statement constitutes waiver of a challenge to the discretionary

aspects of a sentence if the Commonwealth objects to omission of the

statement. Commonwealth v. Bruce, 916 A.2d 657 (Pa.Super. 2007),

appeal denied, 593 Pa. 754, 932 A.2d 74 (2007).

What constitutes a substantial question must be evaluated on a case-

by-case basis. Commonwealth v. Paul, 925 A.2d 825 (Pa.Super. 2007).

A substantial question exists “only when the appellant advances a colorable

argument that the sentencing judge’s actions were either: (1) inconsistent

with a specific provision of the Sentencing Code; or (2) contrary to the

fundamental norms which underlie the sentencing process.” Sierra, supra

at 912-13. An allegation that the sentencing court failed to consider a

specific mitigating factor generally does not raise a substantial question.

Berry, supra at 996.

Instantly, Appellant failed to include the requisite Rule 2119(f)

statement in his appellate brief, and the Commonwealth objected to this

omission. Consequently, Appellant’s challenge to the discretionary aspects

of his sentence is waived. See Pa.R.A.P. 2119(f); Bruce, supra. Moreover,

even if Appellant had properly preserved his claim it would nevertheless

preclude appellate review because it does not pose a substantial question.

See Berry, supra. Furthermore, the record belies Appellant’s claim. The

trial court expressly stated it considered Appellant’s young age at the time of

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the crimes and sentencing; but Appellant’s questionable rehabilitative

potential outweighed any mitigation due to Appellant’s young age. (See

Trial Court Opinion at 12.) Therefore, Appellant’s third issue merits no relief.

In his fourth issue, Appellant argues the court imposed a mandatory

minimum sentence for his PWID conviction, based on Appellant’s possession

of a firearm during a crime involving a controlled substance.7 Appellant

asserts the court’s imposition of the mandatory minimum sentence was

unlawful in light of the United States Supreme Court’s decision in Alleyne v.

United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013)

(holding any fact increasing mandatory minimum sentence for crime is

considered element of crime to be submitted to fact-finder and found beyond

reasonable doubt). Appellant acknowledges that his possession of a firearm

was an issue at trial based on Appellant’s charges for violations of the

Uniform Firearms Act. Nevertheless, Appellant contends possession of a

firearm was not an element of the crime for his PWID charge, so the jury

could not have found beyond a reasonable doubt that Appellant possessed a

firearm, in connection with Appellant’s PWID offense. Since Alleyne,

Appellant asserts this Court has expressly declared unconstitutional in its

entirety the mandatory minimum sentencing statute imposed in this case. ____________________________________________

7 Appellant states the court imposed the mandatory minimum sentence at 42 Pa.C.S.A. § 9712 (sentences for offenses committed with firearms). The relevant mandatory minimum sentencing statute is 42 Pa.C.S.A. § 9712.1 (sentences for certain drug offenses committed with firearms).

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To the extent the court might have also imposed a mandatory minimum

sentence based on the “drug-free school zones” statute, Appellant contends

the court’s imposition of that mandatory minimum sentence was similarly

unlawful in light of Alleyne and its progeny.8 Appellant concludes the

court’s imposition of a mandatory minimum sentence for his PWID conviction

violated Alleyne, and this Court must vacate and remand for resentencing.

We agree Appellant is entitled to relief on this issue.

Our standard of review is as follows:

Generally, a challenge to the application of a mandatory minimum sentence is a non-waiveable challenge to the legality of the sentence. Issues relating to the legality of a sentence are questions of law, as are claims raising a court’s interpretation of a statute. Our standard of review over such questions is de novo and our scope of review is plenary.

Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa.Super. 2012),

appeal denied, 617 Pa. 629, 53 A.3d 756 (2012) (quoting Commonwealth

v. Brougher, 978 A.2d 373, 377 (Pa.Super. 2009)).

Section 9712.1 sets forth the mandatory minimum sentence imposed

in this case, as follows:

§ 9712.1. Sentences for certain drug offenses committed with firearms

____________________________________________

8 Appellant also mentions a mandatory minimum sentence based on the weight of the drugs involved. Nevertheless, the record makes clear the court did not impose the mandatory minimum sentence under 18 Pa.C.S.A. § 7508 (drug trafficking sentencing and penalties).

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(a) Mandatory sentence.—Any person who is convicted of [PWID] when at the time of the offense the person or the person’s accomplice is in physical possession or control of a firearm, whether visible, concealed about the person or the person’s accomplice or within the actor’s or accomplice’s reach or in close proximity to the controlled substance, shall likewise be sentenced to a minimum sentence of at least five years of total confinement.

* * *

(c) Proof at sentencing.—Provisions of this section shall not be an element of the crime, and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.

42 Pa.C.S.A. § 9712.1 (emphasis added) (internal footnote omitted).

Additionally, the “drug-free school zone” statute provides, in pertinent

part:

§ 6317. Drug-free school zones

(a) General rule.—A person 18 years of age or older who is convicted in any court of this Commonwealth of…[PWID] shall, if the delivery or possession with intent to deliver of the controlled substance occurred within 1,000 feet of the real property on which is located a public, private or parochial school or a college or university or within 250 feet of the real property on which is located a recreation center or playground or on a school bus, be sentenced to a minimum sentence of at least two years of total confinement, notwithstanding any other provision of this title, The Controlled Substance, Drug, Device and

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Cosmetic Act or other statute to the contrary. The maximum term of imprisonment shall be four years for any offense:

(1) subject to this section; and

(2) for which The Controlled Substance, Drug, Device and Cosmetic Act provides for a maximum term of imprisonment of less than four years.

If the sentencing court finds that the delivery or possession with intent to deliver was to an individual under 18 years of age, then this section shall not be applicable and the offense shall be subject to section 6314 (relating to sentencing and penalties for trafficking drugs to minors).

(b) Proof at sentencing.—The provisions of this section shall not be an element of the crime. Notice of the applicability of this section to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider evidence presented at trial, shall afford the Commonwealth and the defendant an opportunity to present necessary additional evidence and shall determine by a preponderance of the evidence if this section is applicable.

18 Pa.C.S.A. § 6317 (emphasis added) (internal footnote omitted).

In Alleyne, the Court expressly held that any fact increasing the

mandatory minimum sentence for a crime is considered an element of the

crime to be submitted to the fact-finder and found beyond a reasonable

doubt. See Alleyne, supra. In Commonwealth v. Newman, 99 A.3d 86

(Pa.Super. 2014) (en banc), this Court addressed the constitutionality of

Section 9712.1 in light of Alleyne. Relying on Alleyne, Newman held that

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Section 9712.1 can no longer pass constitutional muster as it “permits the

trial court, as opposed to the jury, to increase a defendant’s minimum

sentence based upon a preponderance of the evidence that the defendant

was dealing drugs and possessed a firearm, or that a firearm was in close

proximity to the drugs.” Newman, supra at 98. This Court further held

that the subsections of Section 9712.1 are so “essentially and inseparably

connected” that severance of the statute is not possible, rendering the entire

statute unconstitutional. Id. at 102. Thus, this Court vacated Newman’s

PWID sentence and remanded for resentencing without imposition of the

mandatory minimum under Section 9712.1.9 See also Commonwealth v.

Bizzel, 107 A.3d 102 (Pa.Super. 2014) (relying on Newman and holding

drug-free school zone statute at Section 6317 is unconstitutional and cannot

be severed); Commonwealth v. Valentine, 101 A.3d 801 (Pa.Super.

2014) (extending logic of Alleyne and Newman to Sections 9712 and 9713

and holding those sections are likewise unconstitutional insofar as they

permit automatic increase of defendant’s sentence based on preponderance

of evidence standard; Commonwealth and trial court’s attempt to cure

unconstitutional provisions of statutes by including questions on verdict

sheet regarding whether defendant possessed firearm and whether robbery ____________________________________________

9 This Court also made clear that Alleyne is subject to limited retroactivity; in other words, Alleyne is applicable only to criminal cases still pending on direct review. Id. at 90. Because Newman’s case was still pending on direct appeal, the holding in Alleyne applied.

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occurred in or near public transportation, did not remedy fundamental

unconstitutionality of statutes; in presenting those questions to jury, trial

court performed impermissible legislative function by creating new

procedure in effort to impose mandatory minimum sentences in compliance

with Alleyne; trial court lacked authority to allow jury to determine factual

predicates of Sections 9712 and 9713, where statutes are not severable and

are unconstitutional in their entireties).

Instantly, the jury found Appellant guilty of, inter alia, PWID for his

drug related activities on February 23, 2012. The verdict sheet specifically

asked the jury to answer the following questions: (1) at the time of the

offense, was Appellant in physical possession or control of a firearm?; (2)

Was a firearm in close proximity to the controlled substance?; (3) Was

Appellant within 1,000 feet of the real property of a school? (Verdict Sheet,

dated 9/18/13, at 1). The jury answered each of these questions

affirmatively.

At sentencing, the court did not expressly state which mandatory

minimum sentence it applied, but the court indicated that Appellant’s PWID

conviction carried a mandatory minimum sentence of five (5) to ten (10)

years’ imprisonment.10 See 42 Pa.C.S.A. § 9712.1. Nevertheless, by asking

the jury to find beyond a reasonable doubt the factual predicates for the ____________________________________________

10 In its opinion, the court states it imposed the mandatory minimum sentence at Section 9712.1. (See Trial Court Opinion at 11, 13.)

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mandatory minimum sentences at Sections 9712.1 and 6317, the trial court

performed an impermissible legislative function, as the relevant statutes are

not severable, and are unconstitutional in their entireties. See Newman,

supra; Bizzel, supra; Valentine, supra. Therefore, the court’s imposition

of the mandatory minimum sentence at Section 9712.1 was unlawful. To

the extent the court also imposed the mandatory minimum sentence at

Section 6317, that action was likewise improper. Accordingly, we affirm

Appellant’s convictions, but we vacate the judgment of sentence and remand

for resentencing without imposition of a mandatory minimum sentence.

Judgment of sentence vacated; case remanded for resentencing.

Jurisdiction is relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/12/2015

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COMMONWEAL TH OF PENNSYLVANIA PHILADELPHIA COUNTY

CP-51-CR-0004984-2012 v.

LYKEITH TUCKER SUPERIOR COURT NO.: 1580 EDA 2014

OPINION

I. Procedural History

On September 12, 2013, following a two day jury trial, the defendant, Lykeith Tucker

("Defendant") was found guilty of Possession with Intent to Distribute ("PWID") (35 Pa.C.S. §

780-113(a)(30)), Criminal Conspiracy (18 Pa.C.S. § 903(c)), Possession of a Firearm Prohibited

(18 Pa.C.S. § 6105), Possession of a Firearm without a License (18 Pa.C.S. § 6106), Carrying a

Firearm on Public Streets in Philadelphia ( 18 Pa.C.S. § 6108), and Possession of an Instrument

of a Crime ("PIC") (18 Pa.C.S. § 907(a)). On January 10, 2014, this Court imposed an aggregate

sentence of seven to fourteen years, plus five years reporting probation. Defendant received the

mandatory minimum sentence of five to ten years for PWID followed by five years of reporting

probation; a concurrent term of two to four years for Criminal Conspiracy; a concurrent term five

to ten years for Possession of a Firearm Prohibited; a consecutive term of two to four years for

Possession of a Firearm without a License; a consecutive term of five years reporting probation

for Carrying a Firearm on Public Streets in Philadelphia; and, a concurrent term of five years Circulated 06/04/2015 10:03 AM

reporting probation for PIC. Defendant has now appealed the verdict and judgment of sentence

entered by this Court on the following grounds:

1) The weight of the evidence shows that Defendant should have been found not guilty

of all charges.

2) The evidence was insufficient to convict Defendant of all charges.

3) The jury gave an inconsistent verdict.

4) The sentence was excessive due to Defendant's young age.

5) The mandatory minimums should not have applied due the Supreme Court's decision

in Alleyne v. United States.

See Statement of Errors Complained of on Appeal ("Statement of Errors").

II. Factual Background At trial, the Commonwealth presented the testimony of Officers Barry Stewart, Patrick

DiDeminico, John Merrigan, Justin Falcone, and Lawrence Flagler. Additionally, by way of

stipulation, the Commonwealth offered the testimony of narcotic experts Ninan V argughese,

Sajju Philip, Anita Bose, and Bridget Brennan. The defense did not present any evidence.

Viewing their testimony in the light most favorable to the Commonwealth as the verdict winner,

the following facts were established.

On February 22, 2012, at approximately 11 :00 PM, Officer Barry Stewart was

conducting plainclothes surveillance on the 4200 block of Otter Street in West Philadelphia.

N.T. 09/18/14 at 33-34. At approximately 11: 10 PM, Officer Stewart observed an individual,

Kevin Harrison, give an unknown amount of United States currency to Defendant. Id. at 35. In

exchange for this currency, Defendant gave unknown small objects to Mr. Harrison. Id. at 35.

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Officer Stewart then instructed the backup officers to stop Mr. Harrison, after he had left

Defendant, as part of the investigation. Id. at 36.

At approximately 11 :30 PM, Officer Stewart observed another individual, Steven

Robinson, also give Defendant United States currency in exchange for unknown small objects.

Id. at 36. Once again, Officer Stewart relayed to the backup officers to stop Mr. Robinson,

following the transaction, as part of the investigation. Id. at 36. Ten minutes later, at

approximately 11 :40 PM, Officer Stewart observed a female, Lucille Libson, approach

Defendant and give him United States currency in exchange for unknown small objects. Id. at

40. Officer Stewart relayed to the backup officers to stop Ms. Libson's vehicle following the

transaction. Id. at 40. Then at approximately 11: 50 PM, Officer Stewart observed Defendant get

into a burgundy sedan. Id. at 3 7. Officer Stewart instructed the backup officers to move in for

the arrest, but before they could apprehend Defendant, he jumped out of the vehicle and evaded

capture. Id. at 37. At Headquarters, Officer Stewart positively identified both Mr. Harrison and

Mr. Robinson as participants in the exchange that he had observed during the investigation. Id.

at 38. The unknown objects recovered from all three individuals tested positive for cocaine. Id.

at 114-115.

The next day, Officer Stewart returned to the 4200 block of Otter Street to conduct

further plainclothes surveillance. Id. at 38. At approximately 7:00 PM, he observed Defendant

standing on the comer with two other individuals, Hikine Jones and John Crumbs. Id. at 41.

Around 7: 10 PM, Clifford Brinkley approached the three individuals, had a brief conversation,

and then handed Mr. Jones U.S. currency. Id. at 43. Mr. Jones went to an alley, and when he

returned, he gave Mr. Brinkley unknown small objects. Id. at 43. Officer Stewart relayed this

information to the backup officers, who stopped Mr. Brinkley, after the exchange, as part of their

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narcotics investigation. Id. at 43. At approximately 7:20 PM, another individual, Michael

Massey, approached Defendant and his two accomplices. Id. at 44. Mr. Massey gave U.S.

currency to Mr. Jones, who then went into the alley and returned with unknown small objects.

Id. at 44. Once Mr. Jones gave these unknown small objects to Mr. Massey, Officer Stewart

instructed the backup officers to stop this individual as he walked up the street. Id. at 45. Ten

minutes later, Officer Stewart observed Defendant go into the alley where the three individuals

were believed to be storing the drug stash. Id. at 46. Officer Stewart then instructed the backup

officers to arrest Defendant, Mr. Jones, and Mr. Crumbs. Id. at 46. Officer Justin Falcone, one

of the backup officers, arrested Defendant and recovered a .380 handgun, loaded with five

rounds, and fifty-five dollars in U.S currency. Id. at 98-100, 108. Officer Falcone also

recovered one sandwich bag containing eight green-tinted packets of crack cocaine and eleven

packets of marijuana from Defendant's person. Id. at 102. These green-tinted packets of crack

cocaine were identical to the green-tinted packets recovered from the five individuals stopped by

the officers during the investigation. Id. at 70, 72, 80, 82, 86. All of the packets recovered

during the investigation tested positive for cocaine. Id. at 114-117.

III. Discussion

A. Sufficiency of Evidence Claim

Defendant argues that the evidence was insufficient to convict on all charges, but this

insufficiency challenge lacks merit. See Statement of Errors. When reviewing a challenge to the

sufficiency of the evidence, the Court must determine whether the evidence at trial, viewed in the

light most favorable to the verdict winner, was sufficient to enable the fact-finder to find every

element beyond a reasonable doubt. Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.

Super. 2001 ). In applying this test, the Court may not weigh the evidence and substitute its own

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judgment in place of the judgment of the fact-finder. Id. The fact-finder, while passing

judgment upon the credibility of the witnesses and weight of the evidence produced, is "free to

believe all, part, of none of the evidence." Id. The Commonwealth may sustain its burden by

means of wholly circumstantial evidence. Id. "If the record contains support for the verdict, it

may not be disturbed." Commonwealth v. Adams, 882 A.2d 496, 499 (Pa. Super. 2005).

1. PWID

The evidence at trial was sufficient to enable the jury to find Defendant guilty of PWID.

Under the Controlled Substance, Drug, Device, and Cosmetic Act, a person is guilty of PWID if

he possesses a controlled substance with intent to deliver that controlled substance. 35 Pa.C.S. §

780-113(a)(30). Cracked cocaine and marijuana are considered controlled substances under the

act. 35 Pa.C.S. § 780-102. When Defendant was arrested, he was in possession of eight packets

of crack cocaine and eleven packets of marijuana. Additionally, before Defendant's arrest,

Officer Stewart observed Defendant's accomplice exchange crack cocaine for U.S. currency with

two individuals. Defendant's intent to deliver is shown through his use of two minor

accomplices to distribute crack cocaine from his stash in order to prevent officers from observing

him physically exchange the drugs with his customers. When Officer Stewart witnessed

Defendant go to the alley where he believed the stash was hidden, he instructed the backup

officers to arrest Defendant, who was in possession of a loaded firearm and the packets of

cocaine and marijuana. Defendant was found in possession of a controlled substance that he

intended to distribute using his minor accomplices. Therefore, there was clearly sufficient

evidence to convict Defendant of PWID and this Court did not err.

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2. Criminal Conspiracy

The evidence at trial was also sufficient to enable the jury to find Defendant guilty of

criminal conspiracy. To sustain a conviction for criminal conspiracy, the Commonwealth must

establish that Defendant "(l) entered into an agreement to commit or aid in an unlawful act with

another person or persons; 2) with shared criminal intent; and 3) an overt act was done in

furtherance of the conspiracy." Commonwealth v. Devine, 26 A.2d 1139, 1147 (Pa. Super.

2011). "Defendant's intent as well as the agreement is almost always proven through

circumstantial evidence, such as by the relations, conduct or circumstances of the parties or overt

acts on the part of the co-conspirators." Commonwealth v. Murphy, 844 A.2d 1228, 1238 (Pa.

2004).

On February 23, 2012, Officer Stewart witnessed Defendant's accomplice, Hikine Jones,

take U.S currency from two individuals, go back into the alley on the 4200 block of Otter Street,

and return with packets of crack cocaine. Since Officer Stewart suspected that Defendant and his

minor accomplices were hiding their drug stash in that alley, he instructed the backup officers to

arrest Defendant as soon as he went back into the alley and returned to the comer. These facts

demonstrated that: 1) Defendant entered into an agreement with his co-conspirators to sell crack

cocaine on the corner of 4200 block of Otter Street, 2) Defendant intended to work in concert to

sell that crack cocaine, and 3) Defendant and his co-conspirators committed an overt act in

furtherance of that crime by selling the crack cocaine to two individuals. After returning from

the alley, Defendant was in possession of a loaded handgun and the same type of crack cocaine

being distributed by his accomplices. These factors established sufficient circumstantial evidence

for the jury to find Defendant guilty of criminal conspiracy.

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3. PIC

The evidence at trial was also sufficient to enable the jury to find Defendant guilty of

PIC. A person is guilty of PIC if he "possesses a firearm or other weapon" with "intent to

employ it criminally." 18 Pa.C.S. § 907(b). Although criminal intent can be inferred beyond a

reasonable doubt from the surrounding circumstances, it cannot be inferred from mere

possession. Commonwealth v. Moore, 381 A.2d 845 (1978). The term firearm is defined as any

weapon that is "designed to or may readily be converted to expel any projectile by the action of

an explosive or the frame or receiver of any such weapon." 18 Pa.C.S. § 6105(i). As the

evidence established above, police officers arrested Defendant on February 23, 2012 and

recovered a loaded .380 handgun, eight packets of crack cocaine, and eleven packets of

marijuana. A .380 handgun would be classified as the type of firearm prohibited by this statute.

Defendant was carrying the loaded handgun in order to protect his drug stash, demonstrating his

intent to employ the firearm criminally. Therefore, there was sufficient evidence for the jury to

find Defendant guilty of PIC and this Court did not err.

4. Possession of a Firearm Prohibited

The evidence at trial was also sufficient to find Defendant guilty of possession of a

firearm prohibited. The crime states that a person previously convicted of a felony may not

"possess, use, control, sell, transfer, or manufacture a firearm" in this Commonwealth. 18

Pa.C.S. § 6105. In order to obtain a conviction under §6105, the Commonwealth must prove

beyond a reasonable doubt that Defendant possessed a firearm after being convicted of an

enumerated offense (felony) that prohibits him from "possessing, using, controlling, or

transferring a firearm." Commonwealth v. Thomas, 988 A.2d 669 (Pa. Super. Ct. 2009).

Defendant had a previous conviction for PWID, so he is ineligible under§ 6105 to possess a

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firearm in the Commonwealth. N.T. 09/19/2013 at 17. Since the jury found Defendant guilty of

PIC, there was sufficient evidence for the judge to find him guilty of possessing a firearm

prohibited.

5. Possession of a Firearm without a License

The evidence at trial was also sufficient to sustain a conviction for possession of a

firearm without a license. A person is guilty of this offense ifhe carries a firearm without a valid

license. Pa.C.S. § 6106(a). As a convicted felon, Defendant was not able to validly possess a

firearm under§ 6105. Therefore, since Defendant could not obtain a valid license due to his

prior conviction, there was sufficient evidence for the jury to find Defendant guilty of possession

of a firearm without a license, and this Court did not err.

6. Carrying a Firearm on Public Streets in Philadelphia

The evidence at trial was also sufficient to for the jury to find Defendant guilty of

carrying a firearm on public streets in Philadelphia. Under§ 6108, no person shall carry a

firearm on the public streets of Philadelphia unless he is licensed to carry that firearm. 18

Pa.C.S. § 6108. As a convicted felon, Defendant was clearly not licensed to carry a firearm

when he was arrested on a public street in Philadelphia with a loaded gun in his possession in the

instant case. Therefore, there was sufficient evidence for the jury to find Defendant guilty of

carrying a firearm on public streets in Philadelphia.

B. Weight of the Evidence Claim

Defendant next claims that the verdict was against the weight of the evidence, hut this

challenge also lacks merit. See Statement of Errors. An appellate review of a weight of the

evidence claim is a "review of the exercise of discretion, not of the underlying question of

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whether the verdict is against the weight of the evidence." Commonwealth v. Brown, 648 A.2d

1177, 1189 (2000). A new trial should not be granted because a "mere conflict in the testimony

or because the judge on the same facts would have arrived at a different conclusion."

Commonwealth v. Widener, 744 A.2d 745, 752. A new trial should only be awarded when the

jury's verdict is "so contrary to the evidence as to shock one's sense of justice" and a new trial is

"imperative" to correct that injustice. Brown, 648 A.2d at 1189.

The evidence outlined above clearly established that defendant was guilty of PWID,

conspiracy, PIC, possession of a firearm prohibited, possession of a firearm without a license,

and carrying a firearm on public streets in Philadelphia. Since Defendant was found in

possession of crack cocaine, marijuana, and a loaded handgun after Officer Stewart witnessed

him and his accomplice selling crack, Defendant cannot argue that the verdict "shocked one's

sense of justice." Therefore, the Court did not abuse its discretion in denying defendant's motion

for a new trial, as the verdict was not against the weight of the evidence.

C. The Jury Gave an Inconsistent Verdict

Defendant also argues that "the jury gave an inconsistent verdict" since the jury found

Defendant not guilty of the charges related to the February 22"d investigation, but guilty of the

charges from the February 23rd investigation. See Statement of Errors. This claim is without

merit. The Court begins "with the presumption that jury verdicts are consistent" and

"consistency will be presumed unless there is no reasonable theory to support the jury's verdict."

Ferrick Excavating and Grading Co. v. Senger Trucking Co., 484 A.2d 744, 746 (1984). The

Court "will not disturb guilty verdicts on the basis of apparent inconsistencies as long as there is

sufficient evidence to support the verdict." Commonwealth v. Frisbie, 889 A.2d 1271, 1273 (Pa.

Super. Ct. 2005). "Inconsistent verdicts, while often perplexing, are not considered mistakes and

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do not constitute a basis for reversal." Commonwealth v. Petteway, 847 A.2d 713, 718 (Pa.

Super. Ct. 2004).

In this instance, the jury's verdict was not inconsistent. Officer Stewart conducted his

surveillance on both February 22nd and February 23rd. Even though Officer Stewart testified that

he witnessed Defendant selling crack cocaine on February 22nd, the backup officers were unable

to apprehend Defendant and recover any crack cocaine in his possession on that night.

Therefore, the jury may not have believed that there was sufficient evidence to sustain a

conviction against Defendant for the surveillance conducted on February 22nd. In contrast, on

February 23rd, the police were able to apprehend Defendant after he and his accomplice

participated in two drug deals. These police officers recovered crack cocaine, marijuana, and a

loaded handgun from Defendant. The jury believed that this evidence was sufficient enough to

convict Defendant of all the charges related to the February 23rd surveillance. Therefore, the jury

verdict was not inconsistent, this claim lacks merit, and the Court did not err.

D. Excessive Sentence

Defendant also argues that the sentence was excessive due to Defendant's young age, but

this claim also lacks merit. See Statement of Errors. Sentencing is a matter "within the sound

discretion of a trial court." Commonwealth v. Simpson, 510 A.2d 760 (1986). The trial court,

however, must exercise its discretion in view of statutory guidelines and considerations.

Commonwealth v. Hollerbush, 444 A.2d 1235 (1982). When exercised in light of these

guidelines and considerations, the sentence will not be disturbed by an appellate court "unless it

is so clearly excessive as to constitute an abuse of discretion." Hollerbush, 444 A.2d at 1240.

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Based on the applicable sentencing guidelines, Defendant's sentence was not excessive,

and this Court did not abuse its discretion. First, for PWID charge (35 Pa.C.S. § 780-

113(a)(30)), with an Offense Gravity Score ("OGS") of six and the Prior Record Score ("PRS")

of five, the sentencing guidelines called for a minimum sentence of eighteen to twenty-four

months (with a three month variance). However, since Defendant was guilty of possessing a

firearm while committing PWID, he was subject to the mandatory minimum sentence of five to

ten years under §9712. 42 Pa.C.S. § 9712.1. As for the criminal conspiracy (18 Pa.C.S. §

903(c)), given the OGS of six and the PRS of five, the sentencing called for a minimum between

twelve to eighteen months (with a three month variance). Defendant was sentenced, within the

guidelines, to a concurrent term of two to four years on that charge. As for the possession of a

firearm prohibited (18 Pa.C.S. § 6105), given the OGS often and the PRS of five, the sentencing

guidelines called for a minimum of five to six years (with a twelve month variance). For this

conviction, Defendant was sentenced, within the guidelines, to a concurrent term of five to ten

years. For possession of a firearm without a license (18 Pa.C.S. § 6106(a)(l)), given the OGS of

nine and PRS of five, the sentencing guidelines called for a minimum between one and a half to

two years (with a twelve month variance). The judge sentenced Defendant to a consecutive term

of two to four years, well within the guidelines.

As for carrying a firearm on public streets in Philadelphia (18 Pa.C.S. § 6108), given the

OGS of five and PRS of five, the sentencing guidelines called for a minimum sentence of twelve

to eighteen months (with a three month variance). For this charge, Defendant was sentenced to a

consecutive term of five years reporting probation which is still within the five year statutory

maximum for misdemeanor 1 offenses. See 18 Pa.C.S.A. § 1104. Finally, for possession of an

instrument of crime (18 Pa.C.S. § 907(a)), considering the OGS of four and the PRS of five, the

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sentencing guidelines called for a minimum sentence of nine to sixteen months (with a three

month variance). For this charge, Defendant received a sentence of five years probation to be

served concurrently, which is greater than the minimum recommended by the sentencing

guidelines, but still within the statutory five year maximum for misdemeanor 1 offenses. This

Court explained both deviations from the guidelines as being attributable to the "defendant's

questionable rehabilitative potential". N.T. 01/10/14 at 10.

Defendant also argues that the Court did not take into consideration his young age at the

time of the incident and sentencing. The Court took all relevant factors into consideration, but

still imposed this sentence due to Defendant's questionable rehabilitative potential, which

outweighed any mitigation due to his age. Id. There was no abuse of discretion by this Court in

imposing the sentence; Defendant's claim is without merit; and this Court did not err.

E. Claim thatMandatoryMinimums are Unconstitutional

Finally, Defendant claims that mandatory minimums should not have applied in this case

due to the United States Supreme Court's decision in Alleyne. Alleyne v. United States, 133

S.Ct. 2151 (2013). However, Defendant failed to properly interpret Alleyne. In Alleyne, the

Supreme Court held that any fact that increases a mandatory minimum sentence must be

submitted to a jury and proven beyond a reasonable doubt. Id. Defendant in Alleyne was

convicted of using a firearm in a violent crime, which carried a mandatory minimum of five

years. Id. at 2155-2156. However, if Defendant was found to have brandished the gun during

the crime, the mandatory minimum would rise to seven years. Id. at 2155. During sentencing,

the judge determined that Defendant had brandished the gun, so the judge applied the seven-year

mandatory minimum. Id. at 2156. The Supreme Court held that Defendant's Sixth Amendment

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rights were infringed since the elements of brandishing a firearm were not presented to the jury

nor found beyond a reasonable doubt. Id. at 2163-2164.

The Alleyne decision does not abolish all mandatory minimum sentences, as Defendant

alleges in his Statement of Errors. In Commonwealth v. Watley, the Pennsylvania Supreme

Court interpreted and applied the Alleyne decision when determining that the mandatory

minimum sentence for 42. Pa.C.S. § 9712.1 (drug offenses committed with firearms) still applied

to a defendant convicted of PWID and two firearm offenses. Commonwealth v. Watley, 81 A.3d

108 (Pa. 2013 ). In Watley, police officers recovered Ecstasy pills and two firearms from

Defendant's vehicle after stopping him for speeding. Id. at 111-112. Defendant was convicted

of PWID, conspiracy, and two counts of firearms not to be carried without a license. Id. at 112.

The court imposed a mandatory minimum sentence of five years pursuant to 42. Pa.C.S. §

9712.1, which Defendant challenged based on the Alleyne ruling. Id. at 112-113. The court in

Watley found that the jury rendered specific findings to the firearm charges, so the facts

necessary to establish the mandatory minimum sentence were determined by the jury and

essentially undisputed beyond a reasonable doubt. Id. at 121. Therefore, the court refused to

overturn Defendant's mandatory minimum sentence under§ 9712.1. Id.

Similarly, in the instant case, the jury found Defendant guilty of PWID, conspiracy,

possession of a firearm prohibited, possession of a firearm with a license, carrying a firearm on

public streets of Philadelphia, and PIC beyond a reasonable doubt. Just like the jury in Watley,

this jury found all the facts necessary to convict Defendant of the firearm charges, which

triggered the application of the mandatory minimum under § 9712.1. Therefore the mandatory

minimum sentence applied in this case is not invalidated by Alleyne because this Court did not

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determine any additional elements. The facts were submitted to the jury and proven beyond a

reasonable doubt. Accordingly, this Court did not err.

IV. Conclusion

For all of the foregoing reasons, the Court's judgment of sentence should be affirmed.

BY THE COURT:

Date: August 14, 2014

Lisette Shirdan-Harris, J.

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Com. v. Lykeith Tucker Case Number CP-51-CR-0004984-2012

Type of Order: Opinion

PROOF OF SERVICE

I hereby certify that I am this day serving the foregoing Court Order upon the person(s), and the manner indicated below, which service satisfies the requirements of PA. R. Crim. P. 114:

Defense Counsel: Mr. Zachary C. Shaffer, Esq. Montoya Shaffer, LLC Land Title Building 100 S. Broad Street, Suite 1216 Philadelphia, PA 19110

Type of Service: ( ) Personal ( x ) First Class Mail ( ) Other, please specify:

District Attorney: Hugh J. Burns, Jr., Esq. Chief, Appeals Unit District Attorney's Office Three South Penn Square Philadelphia, PA 19107

Type of Service: ( x) Personal ( ) First Class Mail ( ) Other, please specify:

Dated: August 14, 2014