J-S05016-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
SHAREAF WILLIAMS
Appellant No. 1253 MDA 2016
Appeal from the Judgment of Sentence March 1, 2016 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0001217-2013
BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*
MEMORANDUM BY PANELLA, J. FILED FEBRUARY 24, 2017
Appellant, Shareaf Williams, appeals from the judgment of sentence
entered after a jury convicted him of several crimes flowing from his
attempted sale of heroin to an addict. On appeal, Williams raises two
challenges to the sufficiency of the evidence supporting his convictions, and
two challenges to the sentence imposed by the trial court. After careful
review, we affirm.
In 2013, the Commonwealth charged Williams with one count of
possession of heroin with intent to deliver, one count of possession of
heroin, one count of criminal use of a communication facility, and one count
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S05016-17
of possession of drug paraphernalia. In December 2015, these charges were
tried before a jury.
At trial, the Commonwealth presented the following evidence. Brandon
Warner testified that he was a heroin addict, and that he called Williams to
arrange a purchase of three bags of heroin. See N.T., Jury Trial, 12/7/15, at
18; 20-21. Williams directed Warner to meet him at a house at the corner of
First and High Streets in Williamsport. See id., at 22. Warner testified that
he knew Williams, as he had spoken to him approximately fifteen times in
the month prior to that date. See id., at 25-26.
Warner’s wife drove him to the specified house, and Warner expected
to consummate a street transaction with Williams. See id., at 22-23.
Instead, Williams got into Warner’s car and directed him to have his wife
drive around the block. See id., at 23. Warner’s wife began to drive away,
but was immediately pulled over by police. See id. Warner testified that
when questioned by the arresting officer, State Trooper Robert Williamson,
he admitted he had a needle in the car. See id., at 25.
Trooper Williamson testified that after questioning Warner and his
wife, he believed he had grounds for arresting Warner, his wife, and Williams
for attempting to engage in a narcotics transaction. See id., at 37. Williams
was searched pursuant to his arrest, and the police discovered three small
baggies containing heroin. See id., at 37-38.
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Trooper Justin Snyder testified as an expert witness on the habits of
drug dealers and addicts. See id., at 47-50. Trooper Snyder testified that
heroin users usually purchased small amounts of heroin for personal use.
“Very rare do you see them buy in bulk.” Id., at 53. He testified that he
believed that Williams possessed the three bags of heroin with the intent to
sell them to Warner. See id., at 52.
Williams did not present any witnesses, but focused on deficiencies in
the Commonwealth’s case. For instance, he highlighted the fact that police
had failed to confirm whether the phone in Williams’s possession when he
was arrested had received a call from Warner. See id., at 41; 57.
The jury convicted Williams on all charges. After receiving and
reviewing a pre-sentence investigation report (“PSI”), the trial court
sentenced Williams to an aggregate term of imprisonment of four to
eighteen years. Williams filed post-sentence motions challenging the
sufficiency and weight of the evidence supporting his convictions, as well as
challenges to the discretionary aspects of his sentence. The trial court
denied Williams’s motions, and this timely appeal followed.
On appeal, Williams raises two challenges to the sufficiency of the
evidence at trial, and two challenges to the discretionary aspect of his
sentence. We will address Williams’s challenges to his conviction, issues
number three and four, first.
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Issues three and four are both challenges to the sufficiency of the
evidence at trial to support the jury’s verdict. Our standard of review for a
challenge to the sufficiency of the evidence is to determine whether, when
viewed in a light most favorable to the verdict winner, the evidence at trial
and all reasonable inferences therefrom are sufficient for the trier of fact to
find that each element of the crimes charged is established beyond a
reasonable doubt. See Commonwealth v. Dale, 836 A.2d 150, 152 (Pa.
Super. 2003). “The Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means of wholly
circumstantial evidence.” Commonwealth v. Bruce, 916 A.2d 657, 661
(Pa. Super. 2007) (citation omitted).
“[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence.” Id. (citation omitted). Any
doubt raised as to the accused’s guilt is to be resolved by the fact-finder.
See id. “As an appellate court, we do not assess credibility nor do we assign
weight to any of the testimony of record.” Commonwealth v. Kinney, 863
A.2d 581, 584 (Pa. Super. 2004) (citation omitted). Therefore, we will not
disturb the verdict “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.” Bruce, 916 A.2d at 661 (citation omitted).
In issue three, Williams argues that “the small amount of recovered
heroin [in this case] reflects personal use, not product for sale.” Appellant’s
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Brief, at 25. Furthermore, Williams asserts that under the circumstances, it
was just as likely that he was purchasing heroin from Warner. See id.
Williams’s arguments are beside the point. Warner testified that he
arranged a transaction to purchase heroin from Williams. Trooper Snyder
testified that, in his expert opinion, Warner was purchasing heroin from
Williams. The jury was entitled to credit the testimony of both witnesses,
and infer that Williams possessed the heroin with the intent to sell it to
Warner. William’s issue number three merits no relief on appeal.
In his fourth numbered issue, Williams challenges the sufficiency of the
evidence supporting his conviction for criminal use of a communication
facility. The offense of criminal use of a communication facility is defined as
follows.
A person commits a felony of the third degree if that person uses a communication facility to commit, cause of facilitate the commission or the attempt thereof of any crime which constitutes a felony under this title or under the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act. Every instance where the communication facility is utilized constitutes a separate offense under this section.
18 Pa.C.S.A. § 7512. Thus, to support a conviction under Section 7512, the
Commonwealth must establish beyond a reasonable doubt that
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J-S05016-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
SHAREAF WILLIAMS
Appellant No. 1253 MDA 2016
Appeal from the Judgment of Sentence March 1, 2016 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0001217-2013
BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*
MEMORANDUM BY PANELLA, J. FILED FEBRUARY 24, 2017
Appellant, Shareaf Williams, appeals from the judgment of sentence
entered after a jury convicted him of several crimes flowing from his
attempted sale of heroin to an addict. On appeal, Williams raises two
challenges to the sufficiency of the evidence supporting his convictions, and
two challenges to the sentence imposed by the trial court. After careful
review, we affirm.
In 2013, the Commonwealth charged Williams with one count of
possession of heroin with intent to deliver, one count of possession of
heroin, one count of criminal use of a communication facility, and one count
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S05016-17
of possession of drug paraphernalia. In December 2015, these charges were
tried before a jury.
At trial, the Commonwealth presented the following evidence. Brandon
Warner testified that he was a heroin addict, and that he called Williams to
arrange a purchase of three bags of heroin. See N.T., Jury Trial, 12/7/15, at
18; 20-21. Williams directed Warner to meet him at a house at the corner of
First and High Streets in Williamsport. See id., at 22. Warner testified that
he knew Williams, as he had spoken to him approximately fifteen times in
the month prior to that date. See id., at 25-26.
Warner’s wife drove him to the specified house, and Warner expected
to consummate a street transaction with Williams. See id., at 22-23.
Instead, Williams got into Warner’s car and directed him to have his wife
drive around the block. See id., at 23. Warner’s wife began to drive away,
but was immediately pulled over by police. See id. Warner testified that
when questioned by the arresting officer, State Trooper Robert Williamson,
he admitted he had a needle in the car. See id., at 25.
Trooper Williamson testified that after questioning Warner and his
wife, he believed he had grounds for arresting Warner, his wife, and Williams
for attempting to engage in a narcotics transaction. See id., at 37. Williams
was searched pursuant to his arrest, and the police discovered three small
baggies containing heroin. See id., at 37-38.
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Trooper Justin Snyder testified as an expert witness on the habits of
drug dealers and addicts. See id., at 47-50. Trooper Snyder testified that
heroin users usually purchased small amounts of heroin for personal use.
“Very rare do you see them buy in bulk.” Id., at 53. He testified that he
believed that Williams possessed the three bags of heroin with the intent to
sell them to Warner. See id., at 52.
Williams did not present any witnesses, but focused on deficiencies in
the Commonwealth’s case. For instance, he highlighted the fact that police
had failed to confirm whether the phone in Williams’s possession when he
was arrested had received a call from Warner. See id., at 41; 57.
The jury convicted Williams on all charges. After receiving and
reviewing a pre-sentence investigation report (“PSI”), the trial court
sentenced Williams to an aggregate term of imprisonment of four to
eighteen years. Williams filed post-sentence motions challenging the
sufficiency and weight of the evidence supporting his convictions, as well as
challenges to the discretionary aspects of his sentence. The trial court
denied Williams’s motions, and this timely appeal followed.
On appeal, Williams raises two challenges to the sufficiency of the
evidence at trial, and two challenges to the discretionary aspect of his
sentence. We will address Williams’s challenges to his conviction, issues
number three and four, first.
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Issues three and four are both challenges to the sufficiency of the
evidence at trial to support the jury’s verdict. Our standard of review for a
challenge to the sufficiency of the evidence is to determine whether, when
viewed in a light most favorable to the verdict winner, the evidence at trial
and all reasonable inferences therefrom are sufficient for the trier of fact to
find that each element of the crimes charged is established beyond a
reasonable doubt. See Commonwealth v. Dale, 836 A.2d 150, 152 (Pa.
Super. 2003). “The Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means of wholly
circumstantial evidence.” Commonwealth v. Bruce, 916 A.2d 657, 661
(Pa. Super. 2007) (citation omitted).
“[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence.” Id. (citation omitted). Any
doubt raised as to the accused’s guilt is to be resolved by the fact-finder.
See id. “As an appellate court, we do not assess credibility nor do we assign
weight to any of the testimony of record.” Commonwealth v. Kinney, 863
A.2d 581, 584 (Pa. Super. 2004) (citation omitted). Therefore, we will not
disturb the verdict “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.” Bruce, 916 A.2d at 661 (citation omitted).
In issue three, Williams argues that “the small amount of recovered
heroin [in this case] reflects personal use, not product for sale.” Appellant’s
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Brief, at 25. Furthermore, Williams asserts that under the circumstances, it
was just as likely that he was purchasing heroin from Warner. See id.
Williams’s arguments are beside the point. Warner testified that he
arranged a transaction to purchase heroin from Williams. Trooper Snyder
testified that, in his expert opinion, Warner was purchasing heroin from
Williams. The jury was entitled to credit the testimony of both witnesses,
and infer that Williams possessed the heroin with the intent to sell it to
Warner. William’s issue number three merits no relief on appeal.
In his fourth numbered issue, Williams challenges the sufficiency of the
evidence supporting his conviction for criminal use of a communication
facility. The offense of criminal use of a communication facility is defined as
follows.
A person commits a felony of the third degree if that person uses a communication facility to commit, cause of facilitate the commission or the attempt thereof of any crime which constitutes a felony under this title or under the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act. Every instance where the communication facility is utilized constitutes a separate offense under this section.
18 Pa.C.S.A. § 7512. Thus, to support a conviction under Section 7512, the
Commonwealth must establish beyond a reasonable doubt that
(1) Appellant[] knowingly and intentionally used a communication facility; (2) Appellant[] knowingly, intentionally or recklessly facilitated an underlying felony; and (3) the underlying felony occurred … Facilitation has been defined as “any use of a communication facility that makes easier the commission of the underlying felony.”
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Commonwealth v. Moss, 852 A.2d 374, 382 (Pa. Super. 2004) (internal
citations omitted).
Williams argues that the Commonwealth failed to establish that the
transaction occurred, and thus, the Commonwealth could not prove the third
Moss element. See Appellant’s Brief, at 26. However, once again, Williams’s
argument misses the point. We have already concluded that the
Commonwealth presented sufficient evidence to establish that Williams
committed possession of heroin with the intent to deliver it to Warner. That
is the underlying felony, not any actual transaction. The use of cell phones
facilitated Williams’s intent to deliver the heroin to Warner. As a result, the
Commonwealth’s evidence was sufficient to support the conviction.
In the alternative, Williams argues that the Commonwealth did not
provide text or phone records establishing that Warner and Williams had
communicated. While such evidence is certainly more objective than
Warner’s testimony, Warner’s testimony is just as certainly sufficient to
support the conviction. If, as the jury was entitled to do, the jury believed
Warner’s testimony, that was enough to establish that Warner
communicated his desire to purchase heroin to Williams over the phone, and
that Williams replied by informing Warner where to meet to consummate the
transaction. Williams’s fourth issue on appeal merits no relief.
Returning to Williams’s first two issues on appeal, they are both
challenges to the discretionary aspects of the sentence imposed by the trial
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court. “A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted). “Two requirements must be met before we
will review this challenge on its merits.” Id. (citation omitted).
“First, an appellant must set forth in his brief a concise statement of
the reasons relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence.” Id. (citation omitted). “Second, the
appellant must show that there is a substantial question that the sentence
imposed is not appropriate under the Sentencing Code.” Id. (citation
omitted). That is, “the sentence violates either a specific provision of the
sentencing scheme set forth in the Sentencing Code or a particular
fundamental norm underlying the sentencing process.” Commonwealth v.
Tirado, 870 A.2d 362, 365 (Pa. Super. 2005) (citation omitted).
We examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists. See id. “Our inquiry must focus on
the reasons for which the appeal is sought, in contrast to the facts
underlying the appeal, which are necessary only to decide the appeal on the
merits.” Id. (citation omitted); see also Pa.R.A.P. 2119(f).
In the present case, Williams’s appellate brief contains the requisite
Rule 2119(f) concise statement. In his statement, Williams asserts that the
trial court exhibited bias against him during sentencing. This claim raises a
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substantial question. See Commonwealth v. Williams, 69 A.3d 735, 744
(Pa. Super. 2013).
Williams’s Rule 2119(f) statement does not support his second
sentencing claim: That the trial court abused its discretion in imposing an
aggravated range sentence on the possession with intent to deliver
conviction. Normally, this omission would render the issue waived for
appellate review. However, the Commonwealth declined to file a brief in this
appeal. It therefore missed its opportunity to object to this defect. In light of
the Commonwealth’s disinterest in this appeal, we decline to find waiver.
See Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014),
appeal denied, 95 A.3d 275 (Pa. 2014) (declining to find waiver where
Commonwealth did not object to Appellant’s failure to comply with Rule
2119(f)).
After reviewing the record, we conclude that neither of Williams’s
sentencing challenges are meritorious. The sentencing court may have used
arguably inartful language when it stated, “I think … there is a special place
in hell for [drug dealers] who take advantage of the weakness of others,
especially when it comes to an addiction, which is disease, taking advantage
of the disease, nature of people [sic].” N.T., Sentencing, 3/1/16, at 13.
However, a review of this statement, which we quote verbatim, in context
reveals that it was not an indication of personal animus or bias against
Williams:
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I think what struck me, Mr. Williams, is just the fact that you have so many possession with intent to deliver charges. You started out from a very early age it feels like involved in drugs. The fact that you in your description of how drugs play a part in your life, where you say you don’t use, to me that cuts even more against you when you’re found with heroin that you are a dealer and we all know because we can’t help but read about it in the newspaper, hear about it on the TV or see it on the internet how heroin is decimating our communities, not just Williamsport; but the Commonwealth of Pennsylvania, across the United States, just people dying of heroin right and left. The individuals that sell heroin it’s not just heroin any more it’s got heroin with something else in it. This last batch of drugs had fentanyl in it, which apparently packed quite a punch because there were a number of people that overdosed not expecting to have such potent heroin. So that – that’ s really something that I have to consider, the fact that you did go to trial and although you have the right to protect your record for appeal, the fact that I’m really not seeing a whole lot of remorse. I disagree with the Commonwealth on one thing. Having been in the system for as long as I have been and understanding the generational nature of this business, being involved in the criminal justice system, that sometimes it takes a teacher, a family friend, a member of the clergy, perhaps a parole agent to show an individual involved in the criminal justice system a different way, that it isn’t all about fast money, it isn’t all about the thrill of trying to beat the cops or getting around the system and so it’s on that point that I disagree that maybe, I’m not saying that it’s the cure for everything; but maybe that would have changed something in your progression. Maybe not though. Because if you choose to hang around with people who deal drugs you’re going to sell drugs. If you choose to hang around people who don’t honor the law and respect the law, that’s the way you’re going to behave. So unless you are willing to really live that change, the best parole agent in the world isn’t going to help you because you’re never going to – it’s never going to stick. I think the fact that you were on supervision in Philadelphia County or just even if you weren’t that you were just very recently on supervision and came up here within weeks or months of being incarcerated to continue your business up here, boy, that’s certainly not mitigating and I can’t think of a better argument for an aggravated range sentence than that. We are what we repeatedly do. I mean I know that’s not the full quote from Aristotle, but it sure seems like that when I see people who
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– people who steal are thieves. People who deal drugs, drug dealers, you’re preying upon the weaknesses of others. I think there is one could argue there is a special place in hell for people who take advantage of the weaknesses others, especially when it comes to an addiction, which is a disease, taking advantage of the disease, nature of people. So being born in Philadelphia and raised in the suburbs this isn’t about us and them mentality, this is about us as a community keeping away people who trying to hurt our community regardless of where you’re from. You could become – you could be from High Street, you could be from Park Avenue, you could be from wherever, Loyalsock Township in the County of Lycoming it’s just this is the kind of behavior that’s gotta stop. So Miss Ippolito is correct because this is your at least second conviction for possession with the intent to deliver, your statutory maximum is 30 years. So I could conceivably put your max up that long and that would place you almost as old as I am when you could conceivably be off supervision. That’s a long time where if you’re not willing to do anything about it it’s not going to change your behavior at all. So think that what I’m going to do is I’m going to sentence you consecutively on Counts 1 and 2, so I’m not going to go as high as the Commonwealth is recommending; but I’m going to go to 48 months to 18 years as a total overall sentence.
Id., at 11-14. This passage demonstrates that the trial court’s “special place
in hell” statement was but a small part of a lengthy analysis that also
explicitly considered Williams’s difficult childhood, among other things.
Viewed in this context, we do not believe the trial court exhibited bias or
personal animus against Williams.
In his second issue, Williams contends that the trial court abused its
discretion in imposing an aggravated range sentence for his possession of
heroin with intent to deliver conviction. Given the above quoted passage, we
conclude that the trial court’s decision to aggravate Williams’s sentence was
reasonable. The trial court was concerned with the threat Williams posed to
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the community, the likelihood that he would soon re-offend when he was
released from incarceration, and his need for extensive rehabilitation. These
all reasonably militated in favor of an aggravated range sentence. We cannot
conclude that this decision was an abuse of the trial court’s discretion, and
therefore William’s final issue on appeal merits no relief.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 2/24/2017
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