declining to find waiver for alleged failure of Rule 1925(b
How later courts described this case
- declining to find waiver for alleged failure of Rule 1925(b
Written by the judges who cited it.
The opinion
J-A16023-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KYLIEFF BROWN :
:
Appellant : No. 264 EDA 2017
Appeal from the Judgment of Sentence September 9, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001138-2014
BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED JULY 05, 2018
Kylieff Brown appeals, nunc pro tunc, from his judgment of sentence,
entered in the Court of Common Pleas of Philadelphia County, after a jury
convicted him of one count of possession with intent to deliver a controlled
substance (PWID).1 After careful review, we affirm.
The trial court summarized the findings of fact as follows:
This case arises out of a chance meeting between the complaining
witness, Kevin Slaughter, and the [d]efendant, Kylieff Brown, at
the SugarHouse Casino. Upon observing the complainant’s good
fortune at the blackjack tables, [Brown] solicited [Slaughter] to
engage in a drug and gun deal. [Slaughter’s] assent to this
request initiated a series of events culminating in the kidnapping
for ransom, robbery, and attempted murder of [Slaughter]. The
four co-defendants were connected to each other and to the three
crime scenes through cell phone messages and cell site analysis.
This is an abridged version of the facts pertinent to this appeal
since [Brown] was solely convicted of PWID.
____________________________________________
1
35 Pa.C.S. § 780-113(a)(30).
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[Slaughter] testified that he was on parole in December 2013 for
a prior drug conviction. On the evening of December 8, 2013, at
approximately 8:00 P.M., [Slaughter] went to the SugarHouse
Casino to play blackjack. He ran into [Brown], whom he met in
prison. The two sparked a conversation about drugs and a gun.
[Slaughter] indicated to [Brown] that he could sell him both.
[Brown] stated to [Slaughter] that his cousin in Delaware was
looking for 31 grams of cocaine. [Brown] also wanted a gun.
[Slaughter] told [Brown] that he could sell him a .380 caliber
firearm. [Brown] indicated that he wanted to do the deal
immediately. Video surveillance from the casino shows [Brown]
and [Slaughter] at the cashier at 9:13 P.M.
[Slaughter and Brown] drove in [Slaughter’s] black Cadillac DTS
from SugarHouse to South Philadelphia to pick up the drugs and
the gun. [Brown] arranged for them to meet his cousin at 49th
Street and Baltimore Avenue. [Slaughter] pulled over at 49th
Street and Springfield Avenue. He told [Brown] to tell his cousin
to meet him there instead of 49th Street and Baltimore Avenue.
[Slaughter] was abducted at that time. He was eventually
ransomed to his wife approximately fifty minutes after the time of
the initial abduction. He was removed from the van in Northeast
Philadelphia at approximately 11:30 P.M. on December 8, 2013.
Jonathan Moore testified that he observed the abduction and
called 911. He pointed out a gold vehicle which was parked at the
scene to the responding officers. Mr. Moore testified that he
observed a man pick up something near [Slaughter’s] black
Cadillac and get into the gold vehicle.
Officer Christopher Sweeney testified that the gold vehicle[, which
had Delaware tags,] was parked on Springfield Avenue with three
occupants inside. The rear driver’s side passenger was identified
as co-defendant, Kareem Cooley. The male seated in the driver’s
seat was identified as Derrick Hagains. The front passenger was
identified as Anthony McCray. A fourth male, later identified as
[Brown], was detained in the back of a police cruiser when Officer
Sweeney arrived at the scene.
Four clear plastic bags containing an off-white chunk[y] substance
were recovered from inside of the gold vehicle. One of the bags
was recovered under the lining of the vehicle near the back
passenger’s side window. That bag weighed 25.246 grams. The
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other three bags weighed 13.921 grams in totality. It was
determined that the substance in each bag was crack/cocaine.
Trial Court Opinion, at 2-4.
On July 13, 2016, Brown was found guilty of PWID after a jury trial,
presided over by the Honorable Rose Marie DeFino-Natasi. On September 9,
2016, Brown was sentenced to forty to eighty months’ imprisonment. Trial
counsel, Shawn Page, Esquire, did not file a notice of appeal. On December
18, 2016, Brown filed an untimely pro se notice of appeal. David Barrish,
Esquire, was appointed appellate counsel and, on November 21, 2016, filed a
petition for reinstatement of Brown’s appellate rights nunc pro tunc. On
December 5, 2016, this Court quashed Brown’s pro se appeal as untimely. On
December 16, 2016, the trial court granted Brown’s petition. Brown filed a
timely notice of appeal nunc pro tunc, and a court-ordered Pa.R.A.P. 1925(b)
concise statement of matters complained of on appeal on February 28, 2017.
On appeal, Brown challenges the sufficiency of the evidence to support
his conviction. As a preliminary matter, we note that the Commonwealth
urges us to find that Brown has waived his sufficiency claim because he did
not present it with the requisite specificity in his Rule 1925(b) statement. It
is well-settled that an appellant’s concise statement must specify the error to
be considered on appeal. Commonwealth v. Hansley, 24 A.3d 410, 415
(Pa. Super. 2011). “[A Rule 1925(b)] [s]tatement which is too vague to allow
the court to identify the issues raised on appeal is the functional equivalent to
no [c]oncise [s]tatement at all.” Commonwealth v. Heggins, 809 A.2d 908,
911 (Pa. Super. 2002) quoting Commonwealth v. Dowling, 778 A.2d 683,
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686-87 (Pa. Super. 2001). However, this matter is a single-count drug
conviction and the trial court has thoroughly addressed Brown’s claim in its
Rule 1925(a) opinion. Accordingly, we decline to find waiver and will review
Brown’s sufficiency claim. See Commonwealth v. Laboy, 936 A.2d 1058,
1060 (Pa. 2007) (declining to find waiver for alleged failure of Rule 1925(b)
statement to adequately develop sufficiency of evidence claim where matter
was “relatively straightforward drug case,” evidentiary presentation spanned
“mere thirty pages of transcript,” and trial “court readily apprehended
[defendant’s] claim and addressed it in substantial detail”).
We now turn to the merits of Brown’s sufficiency claim. Our standard
of review is well-settled:
A claim challenging the sufficiency of the evidence is a question of
law. Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a reasonable
doubt. Where the evidence offered to support the verdict is in
contradiction to the physical facts, in contravention to human
experience and the laws of nature, then the evidence is insufficient
as a matter of law. When reviewing a sufficiency claim[,] the court
is required to view the evidence in the light most favorable to the
verdict winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal
citations omitted).
[T]he critical inquiry on review of the sufficiency of the evidence
to support a criminal conviction . . . does not require a court to
ask itself whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt. Instead, it must
determine simply whether the evidence believed by the fact-finder
was sufficient to support the verdict.
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Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-36 (Pa. 2007) (internal
citations omitted).
To prove the offense of possession with intent to deliver, the
Commonwealth must prove beyond a reasonable doubt that a defendant both
possessed a controlled substance and had the intent to deliver it.
Commonwealth v. Little, 879 A.2d 293, 297 (Pa. Super. 2005). In narcotics
possession cases, “the Commonwealth may meet its burden by showing
actual, constructive, or joint constructive possession of the contraband.”
Commonwealth v. Roberts, 133 A.3d 759, 767-68 (Pa. Super. 2016)
quoting Commonwealth v. Vargas, 108 A.3d 858, 868 (Pa. Super. 2014)
(quotations omitted).
This Court has previously stated that constructive possession is a legal
fiction. Constructive possession is essentially an inference arising from the
facts and circumstances that possession of the contraband was more likely
than not. Roberts, supra, at 768. “The Commonwealth may sustain its
burden by means of wholly circumstantial evidence.” Id. The intent to deliver
can be inferred from a large amount of a controlled substance; conversely,
possession of a small amount of a controlled substance implies absence of the
intent to deliver. Id. Other facts may be considered in addition to the quantity
of the controlled substance, including the way the contraband was packaged
and the behavior of the defendant. Id.
The trial court summarized the evidence adduced at trial as follows:
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Testimony at trial established that [Brown] solicited [Slaughter]
to engage in a drug deal with his cousin from Delaware. The two
then went to South Philadelphia to pick up the drugs and gun,
then went to make a delivery of the contraband in Southwest
Philadelphia. [Brown] was arrested on the scene of the initial
abduction in Southwest Philadelphia. Based on Officer Sweeney’s
testimony regarding the location of each of the persons inside the
gold vehicle with Delaware tags, the jury could infer that [Brown]
was sitting in [the] rear back passenger’s seat at the time of his
arrest.
Detectives seized four clear plastic bags containing crack/cocaine
from inside of the gold vehicle. One of the bags weighed 25.246
grams. That bag was recovered near the back passenger’s side
window. The three other bags weighed 13.921 grams in totality.
The jury was free to accept the inference that [Brown] took the
drugs from [Slaughter’s] vehicle at the time of the abduction and
brought them into the gold vehicle. The evidence was sufficient
to prove that [Brown] had control and possession of the drugs,
i.e. constructive possession, and that he possessed the
crack/cocaine with the intent to deliver.
Trial Court Opinion, at 6-7.
We agree with the trial court’s analysis. The record supports findings of
both Brown’s constructive possession of narcotics as well as his intent to
deliver them, through a drug deal that he coordinated. Accordingly, Brown’s
sole appellate claim is meritless.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/5/2018
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