Com. v. Moore, J.

J-A35036-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAMES MOORE,

Appellant No. 338 WDA 2014

Appeal from the Judgment of Sentence October 4, 2013

In the Court of Common Pleas of Westmoreland County

Criminal Division at No(s): CP-65-CR-0001608-2012

BEFORE: BENDER, P.J.E., BOWES, and ALLEN, JJ.

MEMORANDUM BY BOWES, J.: FILED JANUARY 09, 2015

James Moore appeals from his aggregate judgment of sentence of

twenty to forty years incarceration after a jury found him guilty of numerous

delivery and possession with intent to deliver (“PWID”) counts, two counts of

corrupt organizations, criminal conspiracy, and hindering apprehension. We

affirm the findings of guilt, but vacate his judgment of sentence and remand

for resentencing.

The facts of this case involve a drug trafficking enterprise in which

Appellant was a principal member. Much of the testimony against Appellant

was relayed by eight admitted heroin addicts. One such person,

Jessica Bales, testified to meeting with Appellant in the summer of 2011 to

sell heroin for him. Ms. Bales acknowledged that she did not personally

observe Appellant sell heroin, but maintained that he kept a shoe box

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containing heroin in the ceiling tiles of her apartment. During this time,

Appellant also introduced Ms. Bales to Dominick Haynes, also known as Dot

or Dottie. Mr. Haynes was tried together with Appellant. According to

Ms. Bales, Mr. Haynes stayed at her apartment and she personally witnessed

him sell heroin. She also received heroin in exchange for allowing Appellant

and Mr. Haynes to sell heroin from her residence. Ms. Bales moved later

that fall from that apartment to a trailer in Mennock Manor, Greensburg.

There, Mr. Haynes and Chance “Sky” McKiver sold heroin. Mr. McKiver had

previously sold heroin from Ms. Bales’ prior apartment as well. Mr. Haynes

and Mr. McKiver supplied Ms. Bales with heroin in exchange for using her

home.

During the fall of 2011, Kelsey Graham, a twenty-two-year-old

women and heroin addict, purchased heroin from Appellant. Ms. Graham

averred that Appellant began to provide her with four stamp bags of heroin

in exchange for sex. Further, Ms. Graham traveled with Appellant to New

Jersey on November 1, 2011, so that he could purchase heroin for resale in

Pennsylvania. A New Jersey State Trooper, Daniel Wojcik, was able to

confirm this trip because he had conducted a traffic stop of the two. When

Appellant and Ms. Graham returned to the Greensburg area, Appellant gave

her ten stamp bags of heroin.

Around this same time, Jillian Davis, another heroin addict, returned to

her Hawksworth Garden apartment after a stay in rehab. She then met

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Mr. McKiver and another individual, Tyrone Leonard, in order to purchase

heroin. Ms. Davis allowed the two men to sell heroin from her apartment for

several days. Thereafter, Ms. Davis met Appellant, who inquired if other

dealers could stay at her apartment. She agreed and Mr. Haynes and

Chauncy “Gunner” Bray began to sell heroin in December 2011 and January

2012. In January 2012, Ms. Davis returned to rehab and gave Mr. Bray a

key to her apartment. Mr. Bray agreed to pay her rent for January.

Additional testimony revealed that on December 7, 2011, Appellant

met with Anna Morcheid and Mr. Bray at a Red Robin restaurant. Mr. Bray

had recently been released from prison. Before he was incarcerated,

Mr. Bray provided Appellant with a cell phone containing heroin contacts. In

addition, he had given to Ms. Morcheid a cell phone with contacts of

individuals who purchased cocaine. Mr. Bray and Appellant apparently had

some dispute over a woman. The Red Robin meeting was designed to settle

the issue. While the three individuals were meeting at Red Robin, a

confidential informant (“CI”) working with Detective Jerry Vernail of the

Greensburg Police and State Trooper Greg Norton arranged to purchase

cocaine. Ms. Morcheid left the restaurant and provided crack cocaine to the

CI.

As a result of the Red Robin meeting, Mr. Bray began to sell heroin

that was supplied by Appellant. According to Mr. Bray, Appellant would

provide him with ten bricks of heroin for $2500, and Mr. Bray would sell that

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product for $5000. Mr. Bray indicated that he used other dealers to sell the

heroin, including his girlfriend Nicole Dudek. Mr. Bray estimated that for

three or four weeks he sold between ten and thirty bricks of heroin, provided

to him by Appellant, every few days.

In January 2012, Detective Vernail and Trooper Norton began to utilize

Jimmie Knight as a CI. Mr. Knight would contact a certain 724-217-xxxx

number to arrange for heroin purchases. On January 19, 2012, Mr. Knight

called that number and met Appellant at the Hawksworth Garden

apartments. Trooper Norton was with Mr. Knight at the time in Mr. Knight’s

car. However, Mr. Knight and Appellant walked behind the apartment

building out of Trooper Norton’s sight. Mr. Knight returned with twenty-four

bags of heroin and without the $190 provided by police for the purchase.

A similar incident occurred on January 23, 2012. Mr. Knight

telephoned the aforementioned number and was instructed to return to the

same location. Both he and Trooper Norton traveled to the Hawksworth

Garden apartments. Mr. Knight again went out of the sight of the trooper

for approximately ten to fifteen seconds, when he entered a stairwell.

Mr. Knight then turned over twenty stamp bags of heroin. Although Trooper

Norton did not see Appellant on this date, Mr. Knight maintained that he

twice purchased heroin from Appellant in the Hawksworth Garden apartment

stairwell.

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The following day Trooper Norton and Mr. Knight arranged for an

additional heroin purchase. On this occasion, Mr. Knight called another

number, 412-853-xxxx, and spoke to an individual identified only as “Sosa.”

Trooper Norton was able to purchase fourteen stamp bags of heroin from

Sosa in exchange for $120. The day after this purchase, Trooper Norton and

Mr. Knight were instructed to go to Ms. Bales’ residence at Mennock Manor

to make their desired heroin purchase. Sosa exited Ms. Bales’ trailer and

sold Mr. Knight fifty stamp bags of heroin for $350.

Trooper Norton and Mr. Knight made an additional purchase on

February 7, 2012 at the Days Inn in New Stanton, Pennsylvania. There,

Mr. McKiver sold Mr. Knight twenty-five stamp bags of heroin in exchange

for $200. On February 9, 2012, Trooper Norton purchased heroin from Sosa

at a Knights Inn in Greensburg after telephoning the 724-217-xxxx number.

Trooper Norton bought fifty stamp bags of heroin for $400.

As part of the February 9, 2012 transaction, Detective Vernail

effectuated a traffic stop of a car after its occupants had been observed

buying drugs at the Knights Inn. At police direction, one occupant called the

724-217-xxxx number to arrange for another purchase. Ms. Dudek sold the

individual eleven stamp bags.

Trooper Norton and Mr. Knight again purchased heroin from

Mr. McKiver on February 21, 2012, buying twenty-three stamp bags of

heroin. That same date Appellant contacted Mr. Bray to inquire if he wanted

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Appellant’s “dope” phone with the 724-217-xxxx number and nine bricks of

heroin. Mr. Bray, Ms. Dudek and Kristin Weightman met with Appellant to

discuss drug business. Appellant gave Ms. Weightman the nine bricks of

heroin, suboxone, and a cell phone. Mr. Bray stashed six of the bricks of

heroin and much of the suboxone at Ms. Dudek’s home. Ms. Dudek,

Ms. Weightman, and Mr. Bray then traveled to Ms. Davis’ Hawskworth

Garden apartment. Mr. Haynes arrived later that evening and he and

Ms. Weightman stayed the night. Ms. Weightman was selling heroin from

the apartment that night.

The next day, February 22, 2012, police observed Ms. Weightman

conduct several hand-to-hand drug transactions outside the Hawksworth

Garden apartments. Police pulled over one customer, who admitted to

purchasing heroin from Ms. Weightman. Police witnessed Ms. Weightman

return to apartment B23, Ms. Davis’ apartment, after the drug deals. After

observing a sale, police began to approach Ms. Weightman and another

individual, Kurt McCamley. Mr. McCamley had been instructed by Mr. Bray

to retrieve nine bricks of heroin from Mr. McCamley’s home and bring it to

the apartment.

Police did not intercept Ms. Weightman before she entered the

apartment. Upon approaching the door, police detected a powerful

marijuana smell emanating from the apartment. After knocking and asking

to speak to the renter, police heard some movement inside. They then

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repeatedly identified themselves as police. No one answered and the

troopers forcibly entered. Upon entering, Mr. Bray, who was inside,

attempted to flee and was captured. Police saw, in plain view, the nine

bricks of heroin and a large amount of money. Also present in the

apartment were Mr. Haynes, Mr. McKiver, and Daniel Bizzelle.1 A cellphone

with the 724-217-xxxx number was among the phones located in the

apartment. Appellant was not present.

As part of the investigation, police that same day executed a search

warrant for Ms. Dudek’s home. That search uncovered six bricks of heroin,

suboxone, cash, and cell phones. Police contacted Ms. Dudek, told her of

their discovery, and attempted to arrange for her to turn herself in.

Ms. Dudek lied to police regarding her location and contacted Appellant.

Appellant then arranged for another woman to pick up Ms. Dudek.

Ms. Dudek stayed with Appellant for five days and Mr. Haynes one night.

Both men knew she was wanted by police. After Mr. Haynes expressed

concern about her being at his residence, Ms. Dudek turned herself in to

police. She provided information to Detective Vernail that Ms. Morcheid was

in possession of additional bricks of heroin. Police arrested Ms. Morcheid on

March 2, 2012, in possession of eight bricks of heroin.

____________________________________________

1

Mr. Bizzelle is the younger brother of Chauncy Bray. He was also referred

to at one point as Dante Bizzelle.

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On March 13, 2012, Appellant asked one of his buyers, heroin addict

Laura Beth Stinson, to pick up and house two individuals: Earl Alford and

Khalil Thomas. The two possessed heroin and cash. Ms. Stinson

transported the individuals to her home in exchange for heroin. Trooper

Norton and Mr. Knight made a purchase of thirty-six stamp bags of heroin

from that location that day. Another trooper stopped Ms. Stinson after she

left her residence. Ms. Stinson agreed to allow police to search her home.

Police found Mr. Alford and Mr. Thomas inside. Mr. Alford was seated on a

toilet in the bathroom, the tank of which concealed heroin. Mr. Thomas was

in a bedroom where heroin was found behind a dresser. In April, police were

able to locate Appellant. At the time of his arrest, he had in his possession

another cellphone with the identical 724-217-xxxx number.2

The Commonwealth charged Appellant with twenty criminal counts.

The charges included two counts of corrupt organizations, criminal

conspiracy, twelve counts of delivery of a controlled substance, four counts

of possession with intent to deliver a controlled substance,3 and hindering

apprehension. The jury convicted Appellant of sixteen counts, finding him

not guilty of two delivery counts and two PWID charges. The trial court

____________________________________________

2

A Commonwealth forensics expert testified that an individual can have two

phones with the same number by asking for the telephone subscriber to

reissue a SIM card with that number.

3

We are aware that both delivery and possession with intent to deliver are

governed by the same statute.

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imposed sentence on October 4, 2013. The court sentenced Appellant to

consecutive two and one-half-to-five-year terms of incarceration on the

corrupt organizations crimes. In addition, it imposed five consecutive two-

to-four-year periods of incarceration for delivery and PWID crimes. Lastly,

the court sentenced Appellant, pursuant to a mandatory minimum based on

the weight of the drugs, to five to ten years incarceration. The court

imposed the remaining sentences concurrently. As mentioned, Appellant’s

aggregate sentence was twenty to forty years imprisonment.

Appellant filed a timely post-sentence motion, which included a

challenge to the alleged excessiveness of his sentence. The trial court

denied Appellant’s motion. This timely appeal ensued. The trial court

directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. Appellant complied, and the trial court

authored its Pa.R.A.P. 1925(a) decision. The matter is now ready for this

Court’s review. Appellant raises six issues on appeal.

1. Whether the court below erred [in] failing to grant a motion

for judgment of acquittal, where there was insufficient

evidence to sustain a guilty verdict with respect to the

following charges:

a. Count 4—Delivery of a Controlled Substance—January

2011 to April 19, 2012

b. Count 6—Delivery of a Controlled Substance—Crack

Cocaine—Red Robin—December 7, 2011; and

c. Count 8—Delivery of a Controlled Substance—Heroin—

Hawksworth Apartments—January 23, 2012

2. Whether the court below erred in allowing witnesses to

present improper hearsay testimony, in particular: Jessica

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Bales; Trooper Gregg Norton; Kelsey Graham; and Desiree

Wilson.

3. Whether the court below erred in allowing the Commonwealth

to offer prior bad act testimony from Desiree Wilson and

Jimmie Lee Knight in violation of Pennsylvania Rule of

Evidence 404.

4. Whether the court below erred in allowing evidence to be

presented in violation of the best evidence rule from Tpr.

Daniel Wojcik.

5. Whether the sentence imposed is excessive, failing to

comport with the goal and objectives of the sentencing code,

having not given sufficient weight to the personal history

factors, the time frame in which the incidents occurred, as

well as the factors raised by counsel at the time of

sentencing.

6. Whether the court below erred in imposing mandatory

minimum sentences at Counts 17 (5 to 10 years) and 19 (3 to

6 years) without submitting the weight of the drugs to the

jury in violation of Alleyne v. United States, 133 S.Ct. 2151

(2013).

Appellant’s brief at 5-6.

In conducting a sufficiency of the evidence review, we view all of the

evidence admitted, even improperly admitted evidence. Commonwealth v.

Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc). We consider such

evidence in a light most favorable to the Commonwealth as the verdict

winner, drawing all reasonable inferences from the evidence in favor of the

Commonwealth. Id. When evidence exists to allow the fact-finder to

determine beyond a reasonable doubt each element of the crimes charged,

the sufficiency claim will fail. Id.

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The evidence “need not preclude every possibility of innocence and the

fact-finder is free to believe all, part, or none of the evidence presented.”

Id. In addition, the Commonwealth can prove its case by circumstantial

evidence. Where “the evidence is so weak and inconclusive that, as a

matter of law, no probability of fact can be drawn from the combined

circumstances[,]” a defendant is entitled to relief. This Court is not

permitted “to re-weigh the evidence and substitute our judgment for that of

the fact-finder.” Id.

Appellant’s specific challenge relates to the jury’s adjudication on three

separate delivery of heroin charges. Two of those crimes pertain to specific

incidents and another count, count four, was a historical charge relative to

other heroin transactions between January 2011 and April 19, 2012, not

encompassed by the specific charges.

Initially, we note that Appellant begins his argument by setting forth a

weight of the evidence claim and not a sufficiency argument. The two types

of issues are distinct. Indeed, a weight claim concedes that sufficient

evidence exists. Commonwealth v. Lewis, 911 A.2d 558, 566 (Pa.Super.

2006). Muddling the two categories, Appellant proceeds to maintain that the

“historical count was based on speculation and lacked sufficient evidence at

trial to support a finding of guilty.” Appellant’s brief at 13-14. According to

Appellant, the charge was vague and could have permitted the jury to find

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him guilty based on one of the specific incidents. Additionally, he posits that

there was no lab report as to the historical charge.4

The Commonwealth counters that the historical count was “proven, not

by speculation, but by the direct testimony of multiple admitted heroin

addicts.” Commonwealth’s brief at 21. It highlights that Kelsey Graham

testified to purchasing heroin from Appellant the first time she met him.

She also submitted that Appellant provided her with heroin in exchange for

sex. Ms. Graham further maintained that Appellant supplied her with ten

bags of heroin after she transported him to Paterson, New Jersey, so that he

could purchase heroin for resale in Greensburg.

Sarah Householder indicated that she had purchased heroin from

Appellant, and Laura Beth Stinson testified that Appellant provided her with

heroin once or twice. Jillian Davis acknowledged receiving heroin from

Appellant, and Jimmie Knight testified that the first time he met Appellant he

purchased heroin from him. All of the aforementioned witnesses testified

that these purchases occurred between the summer of 2011 and spring of

2012. This overwhelming amount of evidence unequivocally is sufficient to

demonstrate that Appellant delivered heroin at times not specified in the

remaining delivery and PWID counts. Appellant’s argument relative to the

historical count is meritless.

____________________________________________

4

The reason for the lack of a lab report was, of course, because the

individuals who testified about the purchases had used the drug.

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Appellant also contests a December 7, 2011 cocaine delivery and a

January 23, 2012 delivery of heroin. The December incident occurred when

Appellant and Anna Morcheid met with Chauncy Bray, one day after

Mr. Bray’s release from prison, at a Red Robin restaurant. During the

meeting, Ms. Morcheid exited the restaurant and delivered cocaine to a

confidential informant.

Appellant maintains that he was merely present at the restaurant with

Ms. Morcheid when she delivered cocaine and not involved with the cocaine

transaction. The Commonwealth responds that Appellant was liable as an

accomplice and a co-conspirator. It points out that the purpose of the

meeting at Red Robin was to discuss the drug trade. The Commonwealth

highlights that while Mr. Bray was incarcerated, Appellant retained

Mr. Bray’s cellphone with heroin contacts and Ms. Morcheid had Mr. Bray’s

“crack phone.” Hence, it suggests that Mr. Bray, Appellant, and

Ms. Morcheid continued drug operations while Mr. Bray was incarcerated.

Finally, the Commonwealth avers that the jury was instructed that it could

not find Appellant guilty based on his mere presence at Red Robin and is

presumed to have followed that instruction.

The trial court concluded that, because Appellant was charged at count

three of the criminal information with conspiracy to deliver and possession

with intent to deliver a controlled substance and Ms. Morcheid and Mr. Bray

were specifically named in that count as co-conspirators, Appellant was

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liable for their acts in furtherance of the conspiracy. Here, the jury was

charged on both conspiratorial and accomplice liability.5 Appellant did not

challenge either instruction. As recently highlighted, the two concepts are

distinct. Commonwealth v. Knox, __ A.3d __ (Pa. 2014) (filed December

15, 2014); see also commonwealth v. Roebuck, 32 A.3d 613, 622-623

(Pa. 2011). Accomplice liability is offense specific. Knox, supra. A person

is only an accomplice if, acting with intent to facilitate, in this case, a cocaine

delivery, he solicits, aids, agrees or attempts to aid the person in planning or

committing the crime. 18 Pa.C.S. § 306.

A person’s “status as an accomplice relative to some crimes within a

larger criminal undertaking or episode no longer per se renders a defendant

liable as an accomplice for all other crimes committed.” Knox, supra at *2.

Thus, as it relates to accomplice liability, we look to whether the evidence

demonstrated that Appellant promoted or facilitated Ms. Morcheid’s delivery

of cocaine by aiding, agreeing to aid, or attempting to aid her in delivering

that substance.

____________________________________________

5

Justice Eakin in a concurring opinion in Commonwealth v. Knox, __ A.3d

__ (Pa. 2014), disputed that a person can be found guilty of an underlying

possession of a firearm crime as a conspirator. Rather, he opined that the

person is guilty of a conspiracy, which is itself a separate crime, or guilty of

the firearms crime under accomplice liability or joint/constructive

possession. Compare Commonwealth v. Johnson, 26 A.3d 1078,

1096 (Pa. 2011) (Eakin, J., concurring) (“heroin found in a co-conspirator's

possession may be attributable to the defendant as a result of conspiratorial

liability.”).

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With respect to conspiratorial liability, it must be remembered that

conspiracy to commit a substantive offense and the substantive offense itself

are separate crimes. Commonwealth v. Johnson, 26 A.3d 1078, 1090

(Pa. 2011). A conspirator is responsible “for the natural and probable

consequences of acts committed by his fellow conspirator or conspirators if

such acts are done in pursuance of the common design or purpose of the

conspiracy.” Commonwealth v. Roux, 350 A.2d 867, 871 (Pa. 1976).

Hence, illegal narcotics possessed and delivered by one member of a

conspiracy may be attributed to another member of that conspiracy.

The trial court instructed the jury that it could find Appellant guilty

under conspiratorial liability

for the act or acts of another person or persons if each of the

following elements [was] proved beyond a reasonable doubt:

(a) that the other person who committed a specific act was

also a member of the same conspiracy;

(b) that the crime in question was committed while the

conspiracy was in existence; and

(c) that the crime in question was committed to further the

goals of the conspiracy.

N.T., 6/17-24/14, at 1263.

This Court has further held that a person is a conspirator if they “1)

entered into an agreement to commit or aid in an unlawful act with another

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

done in furtherance of the conspiracy.” Commonwealth v. Devine, 26

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A.3d 1139, 1147 (Pa.Super. 2011) (discussing concept of conspiracy in the

context of the substantive crime of conspiracy). In examining whether a

conspiracy exists, we consider any association between the alleged

conspirators; knowledge of the commission of the crime; presence at the

scene of the crime, and participation in the object of the conspiracy.”

Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa.Super. 2002) (en

banc) (analyzing substantive crime of conspiracy).

Instantly, the evidence of record demonstrates that Mr. Bray had

previously supplied Appellant with a phone for dealing heroin. Mr. Bray’s

“crack phone” was possessed by Ms. Morcheid. Ms. Morcheid also was

involved in dealing heroin for Appellant, and was later arrested in possession

of a significant quantity of heroin. She met with Mr. Bray and Appellant on

the date in question to facilitate the ongoing drug business. During this

meeting at the Red Robin, Ms. Morcheid delivered crack cocaine to a CI in

the presence of an undercover police officer.

This evidence substantiates that Appellant was actively engaged in an

ongoing conspiracy with Mr. Bray and Ms. Morcheid to sell illegal drugs.

Although Appellant was more involved in the sale of heroin, he was not

merely present at the Red Robin when Ms. Morcheid delivered the cocaine.

Mr. Bray had just been released from prison. Appellant and Ms. Morcheid

were continuing to operate Mr. Bray’s drug enterprise during his

incarceration. Ms. Morcheid was actively involved with aiding Appellant in

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the sale of heroin as well. The evidence was not so weak and inconclusive

that no probability of fact could be derived therefrom. The jury could have

reasonably inferred that Ms. Morcheid was assisting Appellant in selling

cocaine. Accordingly, we decline to upset the jury’s verdict and find

sufficient evidence was introduced to establish Appellant’s guilt.

Appellant’s final sufficiency argument is that Trooper Norton could not

identify Appellant as being present on January 23, 2012, when CI Jimmie

Knight purchased heroin. He submits that Mr. Knight could not recall with

clarity the January 23rd incident and admitted to making other purchases at

the Hawksworth Garden apartments that were consistent with the January

23rd transaction. Without citation to any legal authority, Appellant argues

that the conviction based on the January 23rd event is founded on

speculation.

The Commonwealth rejoins that Mr. Knight identified Appellant as the

person who sold him heroin at least twice in the stairwell of the Hawksworth

Garden apartments. It acknowledges that Mr. Knight admitted to purchasing

heroin after controlled buys for his own use. Nonetheless, it notes that

Trooper Norton did identify Appellant from the January 19th incident and

Mr. Knight telephoned the same 724-217-6662 number on both occasions.

Here, Appellant’s claim fails. The telephone number used on

January 23, 2012 to set up the purchase was the same number of a phone

found on Appellant when he was arrested. Appellant, on January 19, 2012,

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had been personally observed at the same location with Mr. Knight after

Mr. Knight called the number in question to purchase heroin. The evidence

shows that Appellant was the principal supplier of heroin for the other low

level drug sellers. Even if Appellant was not actually present, evidence that

he conspired with those regularly selling heroin from the Hawksworth

Garden Apartments was overwhelming. This is simply not a case where the

evidence is so weak and inconclusive that no probability of fact can be drawn

from it.

The second issue Appellant forwards is that the court erred by

permitting four separate witnesses to offer hearsay testimony. We consider

a trial court’s decision on the admission of evidence under an abuse of

discretion standard. Commonwealth v. Feliciano, 67 A.3d 19,

27 (Pa.Super. 2013) (en banc). Appellant first maintains that certain

testimony by Jessica Bales was improperly admitted. He submits that

Ms. Bales’ testimony that Chauncy Bray instructed her to pick up several

bricks of heroin from one person’s home and transport them to another

house was hearsay. Appellant continues that the co-conspirator exception to

the hearsay rule did not apply. In this regard, Appellant asserts that the

statement evidenced a conspiracy between Mr. Bray and Ms. Bales, but had

no relation to him.

The Commonwealth rejoins that Ms. Bales’ testimony was admissible

under the co-conspirator exception to the hearsay rule. See Pa.R.E.

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803(25). “[T]o establish the admissibility of a coconspirator's statement, it

is not required to prove beyond a reasonable doubt that a conspiracy

existed. Rather, it must only show by a preponderance of the evidence that

a conspiracy existed.” Feliciano, supra at 26-27. The preponderance

standard “may be inferentially established by showing the relation, conduct

or circumstances of the parties.” Id. at 27.

The Commonwealth points out that, prior to the disputed testimony,

Ms. Bales testified that beginning in the summer of 2011 she had discussed

selling heroin with Appellant. She also provided that Appellant stored heroin

in the ceiling tiles of her home and brought other individuals to her residence

to sell heroin. The Commonwealth adds that Ms. Bales testified that she

knew Appellant, Mr. Bray, and Dominick Haynes were involved with selling

heroin together. According to the Commonwealth, this evidence establishes

by a preponderance of the evidence that a conspiracy existed between all of

these individuals to sell illegal drugs. We agree.

Appellant’s paltry argument ignores that the co-conspirator exception

applies to statements made by a party’s co-conspirator during and in

furtherance of the conspiracy. Mr. Bray was part of the conspiracy with

Appellant and his statements to Ms. Bales certainly were made in

furtherance of the conspiracy. See Feliciano, supra at 27 (“To lay a

foundation for the co-conspirator exception to the hearsay rule, the

Commonwealth must prove that: (1) a conspiracy existed between declarant

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and the person against whom the evidence is offered and (2) the statement

sought to be admitted was made during the course of the conspiracy. In

addition, there must be evidence other than the statement of the co-

conspirator to prove that a conspiracy existed.”). Appellant’s position is

without merit.

Next, Appellant contends that the trial court erred in permitting

Trooper Norton to testify to information provided to him by a CI, Jimmie

Knight. In one paragraph, and without citation to legal authority, Appellant

argues that Trooper Norton’s testimony that Mr. Knight identified a person

nicknamed “Jae or Jizzle” as the drug seller was inadmissible hearsay where

other evidence showed that these were Appellant’s nicknames.

The Commonwealth counters that the evidence was not hearsay and,

even if it was hearsay, it fell within the then-existing mental, emotional, or

physical condition exception. We need not delve too deeply into these

arguments because, even assuming arguendo that the statements were

inadmissible hearsay, the identical evidence was properly admitted via

Mr. Knight’s own testimony. Thus, the evidence was merely cumulative of

other properly admitted evidence and could not have had any effect on the

outcome of the trial.

Appellant also challenges testimony from Kelsey Graham. Specifically,

Appellant posits that Ms. Graham’s testimony that Kristen Weightman had

told her that Appellant was upset at Ms. Weightman for messing up money

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connected to heroin transactions was hearsay. He avers that this testimony

does not fall within the co-conspirator exception to the hearsay rule because

it impermissibly bootstraps. In this respect, he argues that the statement

itself is what establishes the conspiracy.

The Commonwealth responds that the evidence was admissible under

the co-conspirator exception since it established Ms. Weightman’s role in the

drug organization through various other sources. It notes that

Ms. Weightman was romantically involved with Appellant for a period, and

that numerous individuals testified that Ms. Weightman sold heroin for

Appellant.

The evidence that Ms. Weightman was involved in the drug conspiracy

is overwhelming. The objected-to statement was not the only evidence that

established a conspiracy between Appellant and Ms. Weightman. Therefore,

Appellant’s argument misses the mark. Moreover, the statement was not

introduced to prove that Ms. Weightman did, in fact, botch various heroin

deals. Hence, the evidence does not qualify as hearsay because it was not

introduced for the truth of the matter asserted. See Pa.R.E. 802. It is not

impermissible bootstrapping to allow the evidence as proof of the conspiracy

when the statement is not being used to prove the truth of the underlying

statement. Appellant’s position with respect to Desiree Wilson is identical to

that leveled as to Ms. Weightman; and, therefore, it fails for the same

reasons.

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Appellant’s third argument on appeal is that the trial court erred in

allowing the introduction of prior bad acts evidence. Appellant challenges

the introduction of two pieces of evidence. First, he asserts that it was error

to allow Desiree Wilson to testify that she heard Appellant slap

Ms. Weightman, presumably over Ms. Weightman’s inability to manage the

money aspect of the heroin dealing and her usage of the product. Second,

Appellant contends that the court erred in permitting Mr. Knight to testify

that Appellant offered him $5,000 not to testify at trial.

As to the testimony of both Ms. Wilson and Mr. Knight, Appellant failed

to object. Appellant earlier objected to Ms. Wilson’s testimony regarding

Ms. Weightman accepting $250 in counterfeit money for heroin, but did not

object to her testimony that Appellant smacked Ms. Weightman. Thus, the

issue is not preserved. Pa.R.A.P. 302(a). With regard to Mr. Knight’s

pertinent testimony, Appellant objected once to the leading nature of one

question, which the trial court sustained. He did not contest the introduction

of evidence that he offered Mr. Knight $5,000 not to testify. Accordingly, his

issue is waived. Further, even if the issue was not waived, we would find no

error in its admission since Mr. Knight’s testimony was admissible to

establish consciousness of guilt. See Commonwealth v. Rega, 933 A.2d

997, 1009 (Pa. 2007) (collecting cases).

The fourth claim Appellant levels on appeal is that the court erred in

disregarding the best evidence rule by permitting New Jersey State Trooper

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Daniel Wojcik to testify to the traffic stop he performed on Kelsey Graham

and Appellant in New Jersey. Prior to testifying, the officer reviewed a video

tape of the traffic stop. Appellant objected at trial and argued that the video

was the best evidence of what occurred and it was improper to ask the

witness about what he viewed on the tape. The Commonwealth responded

that the witness had already described what he saw and was only asking

whether his viewing of the tape before trial allowed him to refresh his

recollection of the traffic stop.

The best evidence rule provides, “To prove the content of a writing,

recording, or photograph, the original writing, recording or photograph is

required, except as otherwise provides in these rules, by other rules

prescribed by the Supreme Court, or by statute.” Pa.R.E. 1002. Appellant

relies on Commonwealth v. Lewis, 623 A.2d 355 (Pa.Super. 1993), in

support. Lewis involved a retail theft trial. Therein, security footage

captured the defendant and another individual shoplifting inside Sears

electronic department. A store security guard apprehended the men and

contacted local police. At trial, the police officer who responded testified

with respect to what he viewed on the surveillance tape. In contrast to this

matter, the officer did not personally observe the acts. We ruled that the

failure to introduce the tape violated the best evidence rule.

This case is easily distinguishable since the officer personally took part

in the traffic stop and viewed the incident himself. The best evidence rule

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was not implicated. Compare Lewis, supra at 359 (“Officer Barclay had

viewed the tape; nevertheless, he did not have first-hand knowledge of

Appellant's alleged act of theft; rather, whatever knowledge he possessed

was gained from his viewing of the videotape. Thus, the original tape should

have been produced.”); see also Pa.R.E. 614 (“A witness may use a writing

or other item to refresh memory for the purpose of testifying while testify, or

before testifying.”).

Appellant’s penultimate issue relates to the discretionary aspects of his

sentence. To adequately preserve a discretionary sentencing claim, the

defendant must present the issue in either a post-sentence motion, or raise

the claim during the sentencing proceedings. Commonwealth v.

Cartrette, 83 A.3d 1030, 1042 (Pa.Super. 2013) (en banc). Further, the

defendant must “preserve the issue in a court-ordered Pa.R.A.P. 1925(b)

concise statement and a Pa.R.A.P. 2119(f) statement.” Id. Importantly,

“[t]here is no absolute right to appeal when challenging the discretionary

aspect of a sentence.” Id. “[A]n appeal is permitted only after this Court

determines that there is a substantial question that the sentence was not

appropriate under the sentencing code.” Id.

Appellant preserved his issue in his motion to modify his sentence and

his Pa.R.A.P. 1925(b) statement. However, he has failed to include a

Pa.R.A.P. 2119(f) statement in his brief. Nonetheless, the Commonwealth

has not objected to the absence of a Pa.R.A.P. 2119(f) statement.

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Accordingly, we do not find waiver on that basis. See Commonwealth v.

Stewart, 867 A.2d 589 (Pa.Super. 2005).

Appellant acknowledges that the sentences at each count were within

the sentencing guidelines. Nevertheless, he maintains that the court failed to

give sufficient weight to his difficult upbringing and the short period in which

the drug enterprise operated. Thus, he maintains that his twenty-to-forty

year sentence was excessive.

This Court has previously commented on the disparity in our

jurisprudence governing determining substantial questions. See

Commonwealth v. Dodge, 77 A.3d 1263, 1272 n.8 (Pa.Super. 2013).

There, we also discussed that a bald excessiveness claim does not present a

substantial question, but an excessiveness challenge is not per se precluded

from raising a substantial question for review. We noted that claims

pertaining to the sentencing court’s failure to consider or inadequately

considering facts of record had been held in some cases as not presenting a

substantial question. Id. Yet, in a number of other cases, this Court has

found that an allegation that a sentencing court’s sentence was excessive

because it did not consider mitigating factors presented a substantial

question. Id. (citing Commonwealth v. Perry, 883 A.2d 599, 602

(Pa.Super. 2005)). In light of these apparent inconsistencies, we decline to

find that Appellant has not presented a substantial question.

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When considering a discretionary aspects of sentencing claim, we

analyze the sentencing court’s decision under an abuse of discretion

standard. Dodge, supra at 1274. In conducting this review, we are guided

by the statutory requirements of 42 Pa.C.S. § 9781(c) and (d). Id. Section

9781(c) provides that this Court shall vacate a sentence and remand under

three circumstances. Relevant hereto is if the sentence is within the

sentencing guidelines, “but the case involves circumstances where the

application of the guidelines would be clearly unreasonable[.]” 42 Pa.C.S.

§ 9781(c)(2). In addition, we consider:

(1) The nature and circumstances of the offense and the history

and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the

defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

In the present case, the sentencing court imposed concurrent

sentences on seven counts and consecutive sentences on an additional nine

counts. These sentences were within the standard range of the sentencing

guidelines. It considered that Appellant headed a large-scale drug operation

and that heroin addiction had devastated the community. The court noted

that Appellant had previously been on probation but continued to pursue

criminal activity. It acknowledged Appellant’s troubled family life and past

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drug history. The court highlighted that Appellant knew the serious effects

of heroin addiction insofar as he did not use the drug, but still sold it, and

took advantage of vulnerable individuals. It also found that he exhibited no

remorse. Finally, the court considered a presentence investigation report.

It is evident from the record that the sentencing court considered the

appropriate guidelines and mitigating and aggravating facts in constructing

its sentence. The reasons given for Appellant’s sentence are sound. The

sentence imposed is not clearly unreasonable; therefore, the court did not

abuse its discretion.

Lastly, Appellant contends that his sentence is unconstitutional under

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

that increase a defendant’s mandatory minimum sentence are elements of

the crime and must be proven beyond a reasonable doubt or a defendant’s

jury trial right is violated. Accordingly, many mandatory minimum

sentencing statutes in Pennsylvania are no longer constitutionally sound.

See Commonwealth v. Watley, 81 A.3d 108 (Pa.Super. 2013) (en banc).

More recently, this Court has held that the statute governing drug

mandatories, at issue here, is unconstitutional as a whole and that a

sentence under such a provision is illegal.6 Commonwealth v. Cardwell,

____________________________________________

6

Writing solely for myself herein, I note that I have disagreed with the

rationale expressing that our mandatory minimum sentencing statutes are

not severable. See Commonwealth v. Bizzel, 2014 PA Super 267 (Bowes,

(Footnote Continued Next Page)

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2014 PA Super 263; see also Commonwealth v. Thompson, 93 A.3d 478

(Pa.Super. 2014) (defendant entitled to resentencing pursuant to Alleyne

where the weight of the drugs was not determined by a jury beyond a

reasonable doubt). Accordingly, Appellant is entitled to sentencing relief.

Judgment of sentence vacated. Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/9/2015

_______________________

(Footnote Continued)

J., concurring). I continue to adhere to that view. Nonetheless, even absent

the severability decisions relative to the mandatory sentencing statutes,

Appellant’s sentence does not fall within the Alleyne harmless error analysis

posited by myself in Bizzel or the majority in Commonwealth v. Watley,

81 A.3d 108 (Pa.Super. 2013) (en banc). Phrased differently, the jury

verdict in this case does not make it clear that it determined that Appellant

possessed the requisite weight of heroin beyond a reasonable doubt. See

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

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