explaining the rule of Commonwealth v. Hubbard, 372 A.2d 687 (1977), which was abrogated by Grant
How later courts described this case
- explaining the rule of Commonwealth v. Hubbard, 372 A.2d 687 (1977), which was abrogated by Grant
Written by the judges who cited it.
The opinion
J-S37044-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DONELL WILLIAMS, :
:
Appellant : No. 1999 MDA 2016
Appeal from the Judgment of Sentence November 9, 2016
in the Court of Common Pleas of Franklin County,
Criminal Division, No(s): CP-28-CR-0000658-2016
BEFORE: STABILE, MOULTON and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JUNE 29, 2017
Donell Williams (“Williams”) appeals from the judgment of sentence
imposed following his conviction of one count each of conspiracy to deliver a
controlled substance and criminal use of a communication facility.1 We
affirm.
In its Opinion, the trial court set forth the relevant factual and
procedural history, which we adopt for the purpose of this appeal. See Trial
Court Opinion, 2/6/17, at 2-8.
On appeal, Williams raises the following issue for our review: “Should
Williams’[s] conviction be overturned based on the fact that no reasonable
jury could have found him guilty based on the evidence presented at trial?”
Brief for Appellant at 5.
1
See 18 Pa.C.S.A. §§ 903, 7512(a).
J-S37044-17
Although Williams’s issue on appeal is worded somewhat vaguely, his
argument challenges both the sufficiency and weight of the evidence. 2 With
regard to the sufficiency of the evidence, Williams contends that the
evidence presented at trial did not provide a reasonable basis for the jury to
find him guilty of the above-mentioned crimes. Id. at 10. Williams asserts
that the only evidence presented on the conspiracy charge was that Williams
“was present at his home on the date in question except for a moment when
he walked outside with his girlfriend and dog.” Id. Williams claims that the
only evidence presented on the criminal use of a communications facility
charge was the testimony provided by a confidential informant, who claimed
that he had spoken to Williams. Id.
In its Opinion, the trial court addressed Williams’s challenge to the
sufficiency of the evidence, set forth the relevant law, and determined that
the evidence presented by the Commonwealth was sufficient to support each
of Williams’s convictions. See Trial Court Opinion, 2/6/17, at 9-15. We
agree with the reasoning of the trial court, and affirm on the basis of its
Opinion. See id.
With regard to the weight of the evidence, Williams argues that “[i]t
was a gross oversight for the jury to have overlooked the fact that the
2
In his court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters
complained of on appeal, Williams framed his issue as a challenge to the
weight of the evidence, but his argument therein also raised a challenge to
the sufficiency of the evidence. For this reason, the trial court addressed
both Williams’s sufficiency and weight claims in its Pa.R.A.P. 1925(a)
Opinion.
-2-
J-S37044-17
informant, who was seeking to better his cause, had misidentified to the
drug task force the actual person who made a hand[-]to[-]hand delivery to
him.” Brief for Appellant at 10. Williams further argues that “[f]or the jury
to believe that an informant who could not even properly identify a person
who [sic] he looked at in the eye during a direct hand[-]to[-]hand deal,
could properly identify Williams based on a phone call, when the informant
admitted that he had never spoken to the other Williams brothers, is
incredulous.” Id. at 10-11.
Pursuant to Pa.R.Crim.P. 607, a claim that the verdict was against the
weight of the evidence must be raised with the trial judge in a motion for a
new trial before sentencing or in a post-sentence motion. Here, Williams did
not raise his weight of the evidence claim at any time before sentencing or
in his post-sentence Motion. Accordingly, this issue has been waived. See
Commonwealth v. Filer, 846 A.2d 139, 142 (Pa. Super. 2004).3
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/2017
3
Even if Williams had preserved this issue for our review, we would have
concluded that the issue lacks merit for the reasons expressed by the trial
court in its Opinion. See Trial Court Opinion, 2/6/17, at 15-17.
-3-
Circulated 05/23/2017 09:29 AM
IN THE COURT OF COMMON PLEAS OF THE 39™ JUDICIAL
DISTRICT OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH
Commonwealth of Pennsylvania, Criminal Action
vs. No. 658-2016 /
Donell Williams,
Defendant Honorable Carol L. Van Horn
OPINION sur PA. R.A.P. 1925(a} AND ORDER OF COURT
Filed [EB O 6 2017 -· ·-~ .
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c,.c.c;i7il
Before Van Horn, P.J.
IN THE COURT OF COMMON PLEAS OF THE 39™ JUDICIAL
DISTRICT OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH
Commonwealth of Pennsylvania, Criminal Action
vs. No. 658-2016
Donell Williams,
Defendant Honorable Carol L. Van Horn
STATEMENT OF THE CASE
On April 26, 2016, the above-captioned Defendant, Donell Williams, was
charged with one count of Conspiracy to Deliver a Controlled Substance, 18 P.S. §
903, and one count of Criminal Use of a Communication Facility for "us[ing] a
communication facility to commit, cause or facilitate the commission or the
attempt thereof of any crime which constitutes a felony under ... The Controlled
Substance, Drug, Device and Cosmetic Act" where a telephone constitutes a
"communication facility", 18 P.S. § 7512(a). On September 19, 2016, a jury found
Defendant guilty on both counts. On November 9, 2016, this Court sentenced
Defendant to 27 to 60 months in a State Correctional Institution ("SCI") on the
count of Conspiracy, and 18 to 60 months in a SCI on the count of Criminal Use of
a Communication Facility to run at the expiration of the Conspiracy count.
Defendant filed a Notice of Appeal on December 8, 2016. On December 8,
2016, this Court directed Defendant to file a Concise Statement of the Matters
Complained on Appeal ("Concise Statement") pursuant to Pa.R.A.P. 1925(b)(l).
2
Defendant filed a Concise Statement on December 29, 2016. The Court will now
respond to Defendant's claims of error in this Opinion and Order of Court pursuant
to Pa.R.A.P. 1925(a).
BACKGROUND
At trial, the Commonwealth provided the Court with evidence pertaining to
the incident giving rise to the instant charges. The Commonwealth called Detective
Jason Taylor, an investigator with the Franklin County Drug Task Force, as its first
witness.
Detective Taylor testified that he participated in an investigation with regard
to Defendant and Defendant's two brothers in the delivery of heroin in November
of 2015. (T.P. Trial, September 19, 2016, at 6). Detective Taylor explained that
he was part of the surveillance team on November 24, 2015, and that on that day
he was able to identify Defendant going in and out of the house believed to be
Defendant's residence. (Id., at 6-8). Detective Taylor testified that the goal of that
particular day's investigation was to purchase heroin from Defendant and his
brothers. (Id. at 7). Detective Taylor noted that Defendant also went by the
nicknames "Muscles" or "Mus". (Id. at 17). Surveillance videos from November
24, 2015 were played at trial, during which Detective Taylor identified
3
Defendant's brother Lamont Williams1 as being "out scouting the neighborhood".
(Id. at 25).
Next, the Commonwealth called Detective Scott Wolfe, of the Shippensburg
Police Department, as a witness. Like Detective Taylor, Detective Wolfe
participated in the November 24, 2015 investigation into heroin being sold out of
Defendant's residence. (Id. at 31 ). Detective Wolfe testified that his role in the
investigation was to place a phone call to a confidential informant ("CI"), and to
drive the CI to a location from which he would obtain heroin. (Id. at 32). Prior to
the controlled purchase, Detective Wolfe testified that he searched the CI for
controlled substances and determined that he had none on his person. (Id.).
Detective Wolfe testified that he watched the CI approach the set location, and that
just prior to losing sight of the CI, heard someone on the radio state the CI was
now in their line of vision. (Id. at 33). Detective Wolfe testified that he lost sight
of the CI for about three to four minutes. (Id.). Upon return, the CI got into
Detective Wolfe's vehicle and gave Detective Wolfe three bags containing
suspected heroin. (Id. at 34). Detective Wolfe testified that the three bags were
I
Defendant's brother Lamont Williams was not a co-defendant in the instant trial. However, the Franklin County
District Attorney's Office has charged Lamont Williams for similar crimes. Co-defendant in the instant case is
Defendant's other brother, Booker Williams. (See T.P. Trial, at 77, 113).
4
actually corners of plastic bags, which indicated to him the heroin originated from
Baltimore.2 (Id. at 36).
The Commonwealth next called the CI, Matthew Sheffler, as a witness. (Id.
at 48). Mr. Sheffler testified that after being incarcerated, he requested an
interview with a drug task force investigator to identify individuals who sold
heroin. (Id. at 52). Mr. Sheffler testified that on November 24, 2015, he met with
Detective King, and that he contacted Mus-whom he also identified as Donnell
Williams-to set up the purchase of heroin. (Id. at 53, 54). Mr. Sheffler indicated
to the Court that prior to the controlled purchase, he had met with both Defendant
and his brothers. (Id. at 55). Mr. Sheffler testified that when speaking with
Defendant, he explained he was looking to purchase three bags of heroin for one
hundred dollars. (Id. at 55). Mr. Sheffler further noted that Defendant responded
by requesting they meet in Waynesboro, near the Turkey Hill. (Id.). Mr. Sheffler
noted that following a search of his person performed by the drug task force, he
was driven to the set location and given money to purchase the drugs. (Id.). Mr.
Sheffler stated that it was one of Defendant's brothers, and not Defendant, who
met and sold him the drugs. (Id.). A video recording, which Mr. Sheffler
identified as his own recording of the transaction, was played at trial. (Jd. at 56-
2
Detective Wolfe testified that purchases of Baltimore heroin are generally bundled in four grams ofrolled heroin,
which individual dealers divide into dosage units, typically placed in the comer of a plastic bag which they tie a knot
in and rip off from the rest of the bag. (T .P. Trial, at 36).
5
57). Mr. Sheffler indicated that Defendant called him on the phone near the end of
the recording, and that he knew it was Defendant. (Id. at 58, 67).
The Commonwealth called Detective Brad Kyner of the Franklin County
Drug Task Force as the next witness. Detective Kyner testified that on November
24, 2015, he assisted in an investigation in his capacity as a
surveillance/identification officer. (Id. at 71). Detective Kyner testified that while
on surveillance, he "observed a black male who was identified as Booker Williams
walking west on main across Fairview, and then walk south past my location." (Id.
at 74). He testified that due to safety and integrity concerns, he moved his vehicle
to avoid identification by Defendant's brother. (Id. at 75). Detective Kyner
testified next that he heard on the radio that the CI was walking west on Main
Street, and that as he "pulled up, waiting at the stop sign, the informant and Mr.
Booker Williams met at that location. They physically met." (Id.). Detective
Kyner also indicated that he participated in the execution of a search warrant of
Defendant's residence. (Id. at 76). He testified that at the time of the search,
Defendant was at the residence. (Id.).
The Commonwealth next called Detective Mark King, from the Franklin
County Drug Task Force, as a witness. Detective King testified that he was the
lead officer of the investigation into the Williams brothers, Donnell, Booker, and
Lamont, which began around the end of October/early November of 2015. (Id. at
6
87). Detective King testified that he was the one to interview the CI when he
approached the drug task force, that the CI disclosed he could purchase heroin
from Defendant-known to him as Mus-and that the CI provided him with the
phone number 240-329-7001. (Id. at 90). Detective King testified that the phone
number 240-329-7001 later came up in the subsequent arrest of Defendant's
brother Lamont Williams, as it was a number in Lamont William's phone under
the contact name Mus. (Id. at 91-92). Detective King also testified that the phone
number 240-329-7001 was under the name "Mus" or "Muse" on two other phones
confiscated during the execution of a search warrant in another drug-related case.
(Id. at 92). Detective King testified that the phone call made by the CI on
November 24, 2015, for the purpose of setting up a purchase of heroin, was made
to the same phone number, 240-329-7001. (Id. at 93). Detective King also
testified as to the three bags of heroin obtained by the CI, that he felt it was
significant that the heroin was in "plastic bags that you commonly use to make
sandwiches." (Id. at 99).
Next, Detective King that he conducted a trash pull of Defendant's residence
on January 20, 2016. (Id. at 100-01). Detective King noted that the trash pull
revealed a number of bags with their comers missing. (Id. at 101 ). Detective King
testified that another trash pull was conducted on March 16, 2016, during which
more plastic bags with their comers missing were found. (Id. at 104).
7
Following this subsequent search, a search warrant was applied for and
executed on Defendant's residence. (Id. at 105-06). Detective King testified to the
authenticity of photographs admitted at trial, which he explained were taken during
the execution of the search warrant, and which depicted the master bedroom of
Defendant and his girlfriend. (Id. at 107). Detective King described the
photographs as depicting: a "little bit of marijuana that's wrapped up in a plastic
sandwich bag and cash"; "money in a drawer"; "a Century Link account summary
[with] the name, Donnell Williams"; "a letter, it looks like it may have come from
a prison to [Defendant's girlfriend] and Donnell Williams"; "a letter addressed to
Donnell Williams"; a "pill bottle, and to the left is a digital scale with what appears
to be heroin residue"; "Donnell Williams' Pennsylvania identification card"; and
"Donnell Williams' social security card". (Id. at 108-10).
ISSUES RAISED
Defendant raises the following issues in his Concise Statement.'
1. The verdict of the Jury was against the weight of the evidence.
2. Despite Defendant having never requested same, his attorney should have
filed a motion to sever his case from that of his co-defendant, in that the jury
was more likely to have found him guilty than not, based on the actions of
his co-defendant.
3
Concise Statement of Matters Complained of on Appeal, December 29, 2016, at 3.
8
3. The sentence imposed upon Defendant by the Court was excessive, beyond
that which was recommended by Franklin County Probation, and an abuse
of the Court's discretion.
DISCUSSION
Defendant raises the aforementioned 3 issues on appeal. This Court will
consider each
issue in tum.
I. Sufficiency and Weight of the Evidence
In the instant case, Defendant avers in issue 1 that the jury verdict was
against the weight of evidence. However, in addition to this averment, Defendant
also offers the following brief argument, which on its face raises the issue of
sufficiency of the evidence: "a reasonable jury would not have found him guilty of
either of the charges based on the evidence presented, none of which sufficiently
placed Williams at the scene of a sale, showed that he conspired to cause the sale,
or that he used a communication device." (Concise Statement). As there are
separate legal standards for challenging the (A) sufficiency of the evidence and (B)
the weight of the evidence, this Court will consider each issue in tum.
A. Sufficiency of the Evidence
The standard for evaluating sufficiency of the evidence claims is well
established:
The standard we apply when reviewing the sufficiency of
the evidence is whether viewing all the evidence
9
admitted at trial in the light most favorable to the verdict
winner, there is sufficient evidence to enable the fact-
finder to find every element of the crime beyond a
reasonable doubt.
Commonwealth v. McClendon, 874 A.2d 1223, 1228 (Pa. Super. 2005) (citations
omitted); see also Commonwealth v. Moreno, 14 A.3d 133, 136 (Pa. Super. 2011).
When applying this standard, the court "may not weigh the evidence and substitute
our judgment" for that of the jury. Commonwealth v. Mack, 850 A.2d 690, 693
(Pa. Super. 2004) (quoting Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.
Super. 2001)). Moreover, "[a]ny doubts regarding a defendant's guilt may be
resolved by the fact-finder 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." Commonwealth v. Eckrote, 12 A.3d 383, 386 (Pa. Super. 2010)
( citing DiStefano, 782 A.2d at 582). Importantly, "facts and circumstances
established by the Commonwealth need not preclude every possibility of
innocence." Mack, 850 A.2d at 693 (quoting DiStefano, 782 A.2d at 582).
However, "guilt must be based on facts and conditions proved," and the evidence
is insufficient if guilt is based on "suspicion or surmise." Eckrote, 12 A.3d at 386
(citing Commonwealth v. Swerdlow, 636 A.2d 1173 (Pa. Super. 1994)). A
conviction may be based entirely on circumstantial evidence as long as the
"evidence links the accused to the crime beyond a reasonable doubt."
Commonwealth v. Chmiel, 639 A.2d 9, 11 (Pa. 1994). Finally, when deciding
10
whether the evidence is sufficient to sustain the verdict, "the entire record must be
evaluated and all evidence actually received must be considered." Mack, 850 A.2d
at 693 (quotingDiStefano, 782 A.2d at 582). Yet, "[t]he fact finder is free to
believe all, part, or none of the evidence presented at trial." Moreno, 14 A.3d at
136.
In the instant case, Defendant challenges the sufficiency of the evidence to
sustain his convictions for Conspiracy to Deliver a Controlled Substance, and
Criminal Use of a Communication Facility. As explained by the Pennsylvania
Supreme Court:
To convict a defendant of conspiracy, the trier of fact
must find that: ( 1) the defendant intended to commit or
aid in the commission of the criminal act; (2) the
defendant entered into an agreement with another (a "co-
conspirator") to engage in the crime; and (3) the
defendant or one or more of the other co-conspirators
committed an overt act in the furtherance of the agreed
upon crime. The essence of a criminal conspiracy, which
is what distinguishes this crime from accomplice
liability, is the agreement made between the co-
conspirators.
See Commonwealth v. Murphy, 844 A.2d 1228, 1238 (Pa. 2004) (internal citations
omitted); see also 18 Pa.C.S. § 903. As with accomplice liability, to establish a
defendant's participation in a conspiratorial agreement to commit a crime, "[m]ere
association with the perpetrators, mere presence at the scene, or mere knowledge
of the crime are insufficient". See Murphy, 844 A.2d at 1238 (quoting
11
Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002)). Indeed,
some additional evidence of defendant's intent to act with his co-conspirator to
commit the crime is required. See Murphy, 844 A.2d at 123 8 ( citing Lambert, 795
A.2d at 1016; Commonwealth v. Wayne, 720 A.2d 456, 464 (Pa. 1998)). However,
as direct evidence of the conspiratorial agreement is rarely available, circumstantial
evidence is almost always employed to prove a defendant's criminal intent.
Murphy, 844 A.2d at 1238 (citing Commonwealth v. Spatz, 716 A.2d 580, 592 (Pa.
1992)). "[T]he relations, conduct or circumstances of the parties or overt acts on
the part of the co-conspirators" are examples of such circumstantial evidence.
Murphy, 844 A.2d at 1238 (citing Wayne, 720 A.2d at 463-64). Upon a finding
that an agreement existed which the defendant intentionally entered into, "that
defendant may be liable for the overt acts committed in furtherance of the
conspiracy regardless of which co-conspirator committed the act." Id.
We find that the evidence in the instant case was sufficient for the jury to
convict Defendant of Conspiracy. When viewing the evidence in the light most
favorable to the verdict winner, the Commonwealth, this Court is persuaded that
Defendant did not have a "[m]ere association with the perpetrators ... or mere
knowledge of the" delivery of heroin. See Murphy, 844 A.2d at 1238 (quoting
Lambert, 795 A.2d at 1016). Rather, the Commonwealth presented evidence
whereby the jury could have found Defendant acted with intent to facilitate the
12
delivery of heroin, namely through the phone call setting up a heroin purchase
placed by the CI to a number identified by multiple sources as belonging to Mus.
(See T.P. Trial, at 53-55, 90-93). Moreover, the Commonwealth presented
photographic evidence at trial, depicting Defendant's master bedroom, including
photos of mail identifying Defendant's name and the address of the residence
searched, as well as various drug paraphernalia often used in the sale of heroin.
(Id. at 108-10). Additionally, the evidence presented at trial supports a finding by
the jury that Defendant and his brothers had an agreement to engage in the delivery
of heroin. Specifically, the Commonwealth presented evidence from which the
jury could draw the conclusion that Defendant set up a heroin purchase with the
CI, and that Defendant's brother delivered heroin to the CI-namely testimony as
to the purchase, as well as the Cl's acquisition of three bags of heroin. (Id. at 55-
57). Finally, the evidence presented at trial supports a finding that the overt act
requirement was satisfied. Here, as noted above, the Commonwealth presented
evidence from which the jury could draw the conclusions that the Defendant set up
a heroin purchase with the CI, and that Defendant's brother delivered heroin to the
CI. Both of these plausible conclusions represent overt acts in the furtherance of
delivering heroin.
Viewing the above noted evidence in the light most favorable to the
Commonwealth, there was sufficient evidence to enable the jury to find that
13
Defendant engaged in Conspiracy to deliver heroin. Accordingly, Defendant's
claim as to the sufficiency of evidence regarding his Conspiracy conviction is
meritless.
Next, we must consider whether the evidence was sufficient for the jury to
convict Defendant of Criminal Use of a Communication Facility. To convict a
defendant of Criminal Use of a Communication Facility, the trier of fact must find
that the defendant "use[ d] a communication facility to commit, cause or facilitate
the commission or the attempt thereof of any crime which constitutes a felony
under ... The Controlled Substance, Drug, Device and Cosmetic Act." 18 Pa.C.S.
§ 7512(a). Under Pennsylvania law, a telephone constitutes a communication
facility. 18 Pa.C.S. § 7512(c). Pursuant to Pennsylvania's Controlled Substance,
Drug, Device and Cosmetic Act, "the manufacture, delivery, or possession with
intent to manufacture or deliver, a controlled substance by a person not registered
under this act, or a practitioner not registered or licensed by the appropriate State
board, or knowingly creating, delivering or possessing with intent to deliver, a
counterfeit controlled substance" is prohibited. 35 P.S § 780-113(a)(30).
We find that the evidence in the instant case was sufficient for the jury to
convict Defendant of Criminal Use of a Communication Facility. Based on the
evidence presented at trial, the jury could have found that Defendant used a
telephone to "commit, cause or facilitate the commission ... of any crime which
14
constitutes a felony under ... The Controlled Substance, Drug, Device and
Cosmetic Act." 18 Pa.C.S. § 7512(a). In the instant case, the Commonwealth
presented evidence at trial supporting a conclusion by the jury that Defendant set
up a heroin purchase with the CI over the telephone. (See T.P. Trial, at 53-57).
Specifically, the Commonwealth provided testimony regarding the phone number
240-329-7001, evidence supporting the inference that the phone number belonged
to Defendant, and that this phone number was used by the CI to reach Defendant.
(Id. at 53-55, 90-93). Finally, the delivery of heroin falls within the purview of
Pennsylvania's Controlled Substance, Drug, Device and Cosmetic Act.
Accordingly, when viewing the evidence in the light most favorable to the
Commonwealth, this Court is persuaded that evidence was sufficient for a jury
finding that Defendant used a telephone at the number 240-329-7001 to facilitate a
delivery of heroin
It is clear from the face of the record that the Commonwealth presented
evidence for all elements of Criminal Use of a Communication Facility.
Defendant's claim as to the sufficiency of evidence regarding his Criminal Use of a
Communication Facility conviction is therefore meritless.
B. Weight of the Evidence
A verdict is against the weight of the evidence where it is "so contrary to the
evidence as to shock one's sense of justice and make the award of a new trial
15
imperative." Commonwealth v. Hudson, 955 A.2d 1031, 1035 (Pa. Super. 2008)
(quoting Commonwealth v. Rossetti, 863 A.2d 1185, 1191 (Pa. Super. 2004)). The
jury is entitled "to believe all, part, or none of the evidence, and credibility
determinations rest solely within the purview of the fact-finder." See
Commonwealth v. Flor, 998 A.2d 606, 626 (Pa. 2010) (citing Commonwealth v.
Treiber, 874 A.2d 26, 30 (Pa. 2005)). Furthermore, the jury does not have to
believe any testimony and "the weight to be ascribed to any testimony is a
determination that rests exclusively with the finder-of-fact." See Flor, 998 A.2d at
626. "A new trial should not be granted [based upon] a mere conflict in the
testimony" and must have a stronger foundation than a "reassess[ment of] the
credibility of witnesses". Bruce, 916 A.2d at 665 (quoting Widmer, 744 A.2d at
751-52). The court must not act as a thirteenth juror. See id. Rather, the Court
must determine that "notwithstanding all the facts, certain facts are so clearly of
greater weight that to ignore them or to give them equal weight with all the facts is
to deny justice." Id. (quoting Widmer, 744 A.2d at 751-52).
Here, Defendant alleges that the jury verdict was against the weight of the
evidence. (Concise Statement). Defendant argues that "a reasonable jury would
not have found him guilty of either of the charges based on the evidence presented,
none of which sufficiently placed Williams at the scene of a sale, showed that he
conspired to cause the sale, or that he used a communication device." (Id.).
16
Defendant does not offer further argument to support this averment.
However, it is not this Court's job to determine the credibility of witnesses, their
testimony, or to act as a decider of fact. See Commonwealth v. Bruce, 916 A.2d
657, 665 (Pa. Super. 2007) (quoting Commonwealth v. Widmer, 744 A.2d 745,
751-52 (Pa. 2000)). To do so would be to usurp the role of the jury. Id.
Therefore, Defendant's weight claim fails. The jury is free to believe all,
part, or none of the evidence, and to make credibility determinations. Upon careful
consideration of the record, the Court does not find any of the evidence presented
by the Defendant in support of his weight claim so clearly of greater weight than
the evidence presented supporting his convictions that failure to give it credence
amounts to a denial of justice. The verdicts are not so contrary to the evidence as
to shock one's sense of justice.
II. Ineffective Assistance of Counsel Claim
In issue 2, Defendant avers that his attorney should have filed a motion to
sever his case from that of his co-defendant, in that the jury was more likely to
have found him guilty than not, based on the actions of his co-defendant. ( Concise
Statement). Defendant argues that his attorney had no rational basis for failing to
have filed such a motion, and that "it is likely that the jury simply found
[Defendant] guilty of the charges against him, despite the paucity of evidence,
solely due to the fact that they found his co-defendant guilty, to whom there was a
17
plethora of evidence suggesting the latter's guilt." (Id.). While this issue does not
plainly raise an IAC claim, its grounding in Defendant's attorney's failure to file a
motion to sever the case between co-defendants is in fact a claim for Ineffective
Assistance of Counsel (IAC).
Prior to the Pennsylvania Supreme Court's 2002 decision in Commonwealth
v. Grant, 813 A.2d 726 (Pa. 2002), claims raising the issue ofIAC were required to
be brought "at the earliest opportunity, including on direct appellate review." See
Commonwealth v. Barnett, 25 A.3d 371, 373 (Pa. 2011) (explaining the rule of
Commonwealth v. Hubbard, 372 A.2d 687 (1977), which was abrogated by Grant).
The Grant Court reversed this doctrine, explaining that such claims "require
further fact-finding, extra-record investigation and where necessary, an evidentiary
hearing." Grant, 813 A.2d at 736. Accordingly, the Grant Court "held that claims
of ineffective assistance of counsel should ordinarily be reserved for collateral
review." See Barnett, 25 A.3d at 373; see also Grant, 813 A.2d at 737.
In 2011, the Pennsylvania Supreme Court once again considered the
appropriate procedure for raising IAC claims. See generally Barnett, 25 A.3d 371.
In Commonwealth v. Barnett, the Court went a step further than Grant, prohibiting
the raising of IAC claims on appeal, "absent an 'express, knowing and voluntary
waiver"' of his right to pursue a Post Conviction Relief Act ("PCRA") claim. Id. at
18
377 (quoting Commonwealth v. Liston, 977 A.2d 1089, 1096 (Pa. 2009) (Castille,
CJ., concurring)).
Here, Defendant raises an IAC claim at the appeal level. Defendant has not,
however, indicated he has waived his right to pursue a PCRA claim. As
Defendant's IAC claim is procedurally inappropriate at this stage of his case, this
Court dismisses the issue.
III. Abuse of Discretion in Sentencing
The trial court is afforded "great deference as it is the sentencing judge that
is in the best position to view the defendant's character, displays of remorse,
defiance, or indifference, and the overall effect and nature of the crime."
Commonwealth v. Allen, 24 A.3d 1058, 1065 (Pa. Super. 2011). A sentencing
court:
[M]ust follow the general principle that the sentence
imposed should call for confinement that is consistent
with the protection of the public, the gravity of the
offense as it relates to the impact on the life of the victim
and on the community, and the rehabilitative needs of the
defendant.
Commonwealth v. Mouzon, 812 A.2d 617, 620 (Pa. 2002) (quoting 42 Pa.C.S.A. §
9721(b)). "The sentencing court, however, must also consider the sentencing
guidelines." Commonwealth v. Hardy, 939 A.2d 974, 980 (Pa. Super. 2007).
Depending on the offense gravity score, a court may impose an aggravated
sentence that is a specified amount of time longer than the top of the standard
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range sentence, upon a determination that aggravating circumstances are present.
204 Pa. Code§ 303.13(a)(l)-(4). In Commonwealth v. Mouzon, the Supreme
Court explained:
Essentially, the Guidelines set forth a recommended
standard range ("standard range") in which any given
defendant's sentence should fall, based on the gravity of
the defendant's offense and the defendant's prior record.
For each standard range that corresponds to a particular
offense committed by a particular defendant, the
Guidelines also sets forth an "aggravated range" and a
"mitigated range" to guide the court should it believe that
a sentence in the standard range would be inappropriate
under the circumstances.
Mouzon, 812 A.2d at 620 n.3. "[A] trial court judge has wide discretion in
sentencing and can, on the appropriate record and for the appropriate reasons,
consider any legal factor in imposing a sentence in the aggravated range." Hardy,
939 A.2d at 980 (quoting Commonwealth v. Stewart, 867 A.2d 589, 593 (Pa.
Super. 2005)). "When the court imposes an aggravated or mitigated sentence, it
shall state the reasons on the record and on the Guideline Sentence Form". 204 Pa.
Code§ 303.13(c).
In the instant case, Defendant avers that the sentence imposed by this Court
was excessive, beyond that which was recommended by Franklin County
Probation, and an abuse of the Court's discretion. (Concise Statement). Defendant
further argues that:
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[T]he Court sentenced [Defendant] to a sentence far
above that recommended by the Franklin County
Probation Office, and failed, with out [sic] reasonable
basis, to make Williams eligible for a boot camp and/or
State SIP sentence, both of which [Defendant] qualified
for and to which a sentence to would have been in his
and society's best interest.
(Id.). Defendant's claims challenge the discretionary aspects of his sentences.
The Conspiracy charge carries a maximum sentence of 15 years ( 180
months), with a standard range of21 to 27 months. The Criminal Use of a
Communication Facility charge carries a maximum sentence of 7 years (84
months), with a standard range of 12 to 18 months. This Court sentenced
Defendant to 27 to 60 months in SCI on the Conspiracy charges, and 18 to 60
months in SCI on the charge for Criminal Use of a Communication Facility to run
at the expiration of the sentence for Conspiracy.
The Court had the opportunity to diligently and properly review a pre-
sentence report prior to each sentencing. This Court also listened to Defendant's
apologetic and explanatory statements at the sentencing hearing. At the November
9, 2016 sentencing hearing, this Court stated:
[Court]: Mr. Williams, you are here today to be
sentenced on two charges for which you were convicted
by a jury. Count 1 is possession with intent to deliver
heroin. The gravity score is 6. Your prior record score is
5, making the standard range 21 to 27 months. Count 2
conviction, criminal use of a communication facility.
Gravity score of 5. Prior record score of 5, making the
standard range 12 to 18.
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I have reviewed the presentence report prepared in this
matter, the sentencing memorandum submitted by the
Commonwealth, having heard what the attorneys have
said, as well as yourself in determining what your
sentence should be. Contained within the presentence
report is your prior criminal record. You had a juvenile
adjudication that is not factored into your score, but I
know it was drug related. So, from the time you were a
juvenile, you had drug issues.
Then, you had a receiving stolen property conviction in
Montgomery County, Pennsylvania and received a
sentence of probation, that was in 1998. The same year
you had probation without verdict on a drug charge in
Philadelphia. One year later, conviction in Philadelphia,
felony possession with intent to deliver. You received a
sentence of incarceration in their local jail.
2005, in Maryland a delivery charge. You received a
sentence of incarceration at that time. And then 2009,
another felony possession with intent to deliver in
Maryland and received a sentence of incarceration as
well. And, I will note that you were on supervision in
Maryland at the time you committed this offense. As you
previously stated ... that you were out about three years
before these charges were brought against you and you
have stated both in the presentence report and here today.
You admit you missed [sic] up, the person called you for
drugs and you sent out your brother to deliver it.
[Defendant]: Yes.
[Court]: Have you ever held a job where you received a
paycheck?
[Defendant]: Yes.
[Court]: What did you do in your life?
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[Defendant]: I was at Goodwill in 2013, and then I went
to blast stone at T.R. Wills in Chambersburg, and then I
was at Hard Times Cafe in Hagerstown, and then I just
was at Mattress Warehouse in Hagerstown.
[Court]: Do you understand there is another option to
earning money than illegally selling drugs and profiting
off the addictions of others?
[Defendant]: Yes.
[Court]: If you were before me with a first time offense,
maybe even a second time offense, the pleas of your
attorney would probably be accepted better by the Court.
[Defendant]: Yes.
[Court]: But, sir, your history shows that you have
chosen to be a drug dealer your entire adult life.
[Defendant]: Yes.
[Court]: Therefore, your sentence will not afford you the
opportunity for any kind of consideration for reduction in
sentence to go into a boot-camp program. You will be
RRRI eligible, because you do not have a sentence that
would disqualify you within your criminal history. So,
these are the sentences that I am going to impose.
(T.P. Sentencing, November 9, 2016, at 11-15).
It is evident that this Court reviewed the sentence summary sheet giving due
consideration the facts and character of Defendant's crimes. Thus, the record
necessarily rejects the Defendant's claim that the Court's sentence was imposed
without a reasonable basis. The Court considered the pleas of Defendant, and
Defendant's counsel. However, the Court fashioned a sentence it deemed fitting
23
given Defendant's criminal history, as well as relevant statutory authority. Review
of the applicable record and statutory authority definitively shows that this Court
properly applied the guidelines in question when arriving at the Defendant's
sentence. For all of these reasons, Defendant's abuse of discretion claim is
meritless.
CONCLUSION
For the abovementioned reasons, the verdicts are supported by sufficient
evidence, and they are not against the weight of the evidence. Furthermore, the
Court did not abuse its discretion in the various sentences it imposed upon
Defendant. This Court dismisses the IAC claims, as they are procedurally
inappropriate at this stage in the case. Furthermore, the Court did not abuse its
discretion in the various sentences it imposed upon Defendant. Accordingly, this
Court respectfully requests the Superior Court affirm the various sentences
imposed on Defendant as a result of his guilty pleas and the jury verdict which
found him guilty of the remaining counts, and the underlying sentencing scheme
fashioned after due consideration of all relevant factors, and dismiss the above
captioned appeals.
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IN THE COURT OF COMMON PLEAS OF THE 39™ JUDICIAL
DISTRICT OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH
Commonwealth of Pennsylvania, Criminal Action
vs. No. 658-2016
J
Donell Williams,
Defendant HonorableCarol L. Van Horn
ORDER OF COURT
AND NOW THIS ~DAY OF February,2017, pursuant to Pa. R.A.P.
1931 (c),
IT IS HEREBY ORDERED THAT the Clerk of Courts of Franklin
County shall promptly transmit to the Prothonotary of the Supreme Court the
record in this matter along with the attached Opinion sur Pa. R.A.P. 1925(a).
Pursuant to Pa. R. Crim. P. 114, the Clerk of Courts shall immediately
docket this Opinion and Order of Court and record in the docket the date it was
made. The Clerk shall forthwith furnish a copy of the Opinion and Order a/Court,
by mail or personal delivery, to each party or attorney, and shall record in the
docket the time and manner thereof
By the Court,
Carol L.Van Hom, J.
copies:
Franklin County District Attorney's Office
tt~~~~ ~~~q., Counsel for Defendant
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