Opinion
J. S42037/15 No. 1889 EDA 2014
07-31-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. LAURA WASHINGTON, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence August 31, 2011
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-0005694-2008
BEFORE: SHOGAN, MUNDY, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Laura Washington, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas following a bench trial and conviction for possession with intent to deliver ("PWID"), simple possession, and criminal conspiracy. She challenges the sufficiency of evidence for PWID and criminal conspiracy. We affirm Appellant's convictions, vacate the judgment of sentence, and remand for resentencing.
We adopt the facts and procedural history set forth by the trial court's opinion. See Trial Ct. Op., 11/6/14, at 1-6. We add that Appellant had three prior PWID convictions in 1988, to which counsel indicated no disagreement. N.T. Sentencing Hr'g, 8/31/11, at 6. We also note that Appellant stipulated to the weight of the drugs as approximately 14.64 grams. N.T. Trial, 7/13/11, at 171. Based in part on, inter alia, those prior convictions, the court sentenced Appellant to a mandatory minimum sentence of five to ten years. Id. at 13.
Appellant timely appealed and timely filed a court-ordered Pa.R.A.P. 1925(b) statement raising four issues, including a challenge to the sufficiency of evidence for PWID and conspiracy. Appellant did not challenge her conviction for simple possession.
Appellant opted to raise one issue in her appellate brief:
Was the evidence sufficienct to convict . . . Appellant of the crimes where there was no evidence that . . . Appellant was involved in either of the sales of controlled substances observed and had no controlled substances in her possession.Appellant's Brief at 7.
In support of her issue, Appellant's argument comprised one page of three paragraphs. After two paragraphs of law, we set forth her last paragraph as follows:
Clearly, . . . Appellant was not observed having any involvement with either of the sales. She was found in actual possession of no controlled substances. The fact that . . . Appellant in this case was present when a crimeId. at 11 (citation omitted).
was committed by another is insufficient unless there is evidence of her participation in the crime.
The standard of review for a challenge to the sufficiency of evidence is de novo, as it is a question of law. Commonwealth v. Ratsamy , 934 A.2d 1233, 1235 (Pa. 2007).
[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.Id. at 1235-36 (citations and some punctuation omitted). "When reviewing the sufficiency of the evidence, an appellate court must determine whether the evidence, and all reasonable inferences deducible from that, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish all of the elements of the offense beyond a reasonable doubt." Id. at 1237 (citation and some punctuation omitted).
PWID is defined as follows:
Except as authorized by this 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 licenses by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.35 P.S. § 780-113(a)(30). "In order to uphold a conviction for possession of narcotics with the intent to deliver, the Commonwealth must prove beyond a reasonable doubt that the defendant possessed a controlled substance and did so with the intent to deliver it." Commonwealth v. Aguado , 760 A.2d 1181, 1185 (Pa. Super. 2000) (en banc).
After viewing the record in the light most favorable to the Commonwealth, the parties' briefs, and the decision of the Honorable Charles J. Cunningham, III, we affirm on the basis of the trial court's decision. See Trial Ct. Op. at 3-6, 9-10 (summarizing evidence of multiple drug transactions with confidential informant and proximity of inculpatory evidence to Appellant). The trial court's decision also addressed the legality of Appellant's sentence, which Appellant did not raise before this Court, under Alleyne v. United States , 133 S. Ct. 2151 (2013).
It is well-settled, however, that this Court can sua sponte address a challenge to the legality of a sentence, so we address Appellant's Alleyne claim. See Commonwealth v. Watley , 81 A.3d 108, 118 (Pa. Super. 2013) (en banc), appeal denied, 95 A.3d 277 (Pa. 2014). Subsection 7508(a)(3)(ii) follows:
§ 7508. Drug trafficking sentencing and penalties
(a) General rule.—Notwithstanding any other provisions of this or any other act to the contrary, the following provisions shall apply:
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(3) A person who is convicted of violating section 13(a)(14), (30) or (37) of The Controlled Substance, Drug, Device and Cosmetic Act where the controlled substance is coca leaves or is any salt, compound,
derivative or preparation of coca leaves or is any salt, compound, derivative or preparation which is chemically equivalent or identical with any of these substances or is any mixture containing any of these substances except decocainized coca leaves or extracts of coca leaves which (extracts) do not contain cocaine or ecgonine shall, upon conviction, be sentenced to a mandatory minimum term of imprisonment and a fine as set forth in this subsection:
18 Pa.C.S. § 7508(a)(3)(ii). A defendant's stipulation to the weight of the drugs does not negate the requirement that a fact-finder find weight beyond a reasonable doubt. Commonwealth v. Fennell , 105 A.3d 13, 20 (Pa. Super. 2014) (vacating mandatory minimum sentence because, inter alia, "we see no meaningful difference . . . between submitting the element to the jury and accepting a stipulation from a defendant."). In Commonwealth v. Thompson , 93 A.3d 478 (Pa. Super. 2014), the Court held a mandatory minimum sentence imposed under 18 Pa.C.S. § 7508(a)(2)(ii), was illegal under Watley , supra , and Alleyne , supra. Id. at 494. Because we discern no substantive distinction between Section 7508(a)(2)(ii) in Thompson and the instant Section 7508(a)(3)(ii), and that under Fennell , Appellant's stipulation to the weight did not negate the Alleyne mandate, we hold the court erred by imposing a mandatory minimum sentence. See Fennell , 105 A.3d at 20; Thompson , 93 A.2d at 494.
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(ii) when the aggregate weight of the compound or mixture containing the substance involved is at least ten grams and less than 100 grams; three years in prison and a fine of $15,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity; however, if at the time of sentencing the defendant has been convicted of another drug trafficking offense: five years in prison and $30,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity . . . .
Judgment of sentence vacated. Case remanded for resentencing. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/31/2015
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