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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEENAN DWAYNE FRYE,
Appellant No. 298 WDA 2014
Appeal from the Judgment of Sentence Entered November 26, 2013
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0004269-2012
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 08, 2014
Appellant, Keenan Dwayne Frye, appeals from the judgment of
sentence of a mandatory minimum term of five years’ incarceration, imposed
after he was convicted of various drug and firearm related offenses. On
appeal, Appellant challenges the sufficiency and weight of the evidence to
sustain his convictions. While we conclude those arguments are meritless,
we are nevertheless compelled to sua sponte deem Appellant’s mandatory
sentence illegal under this Court’s recent decision in Commonwealth v.
Newman, 2014 WL 4088805 (Pa. Super. 2014) (en banc). Accordingly, we
vacate Appellant’s judgment of sentence and remand for resentencing.
Appellant was arrested and charged with attempted murder,
aggravated assault, recklessly endangering another person (REAP), carrying
a firearm without a license, possession with intent to deliver a controlled
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substance (PWID), possession of drug paraphernalia, and possession of a
controlled substance. At Appellant’s jury trial,
[t]he Commonwealth’s evidence … established that on
October 17, 2012, Joshua Grimm arranged to meet [Appellant],
Kennan Frye, at a location in Mount Pleasant, Westmoreland
County, Pennsylvania. The purpose of this meeting, according to
Grimm, was to fight [Appellant] because [Grimm] believed
[Appellant] had assaulted a family member. [Grimm] testified
that he set up this meeting on the pretense that he was going to
buy marijuana from [Appellant]; however, as Grimm also
testified, he never intended to really buy the marijuana from
[Appellant]. Accompanied by four friends, Grimm went to the
arranged location and met with [Appellant]. His friends hid
themselves nearby while Grimm met [Appellant] and engaged in
conversation. [Appellant] handed Grimm what Grimm believed
to be a bag of marijuana, and Grimm initiated a fight with
[Appellant] by spraying him with pepper spray. Grimm admitted
that he and [Appellant] struggled and Grimm knocked
[Appellant] down onto his back. As Grimm stood above
[Appellant], warning [Appellant] not to “put his hands” on
Grimm’s family, Grimm saw the muzzle of a gun and then saw
gunfire from [Appellant’s] waistline and realized that he had
been shot. He ran back to his friends, shouting that he had been
shot. Grimm was treated at Frick Hospital and UPMC in
Pittsburgh for his gunshot wounds, and has made a full recovery.
[Appellant] fled the area of the incident immediately after
the shooting. Pennsylvania State Trooper Matthew Hartman
testified that he was dispatched on October 17, 2012[,] at the
beginning of his shift at approximately 11:00 p.m. to Mount
Pleasant to respond to a reported shooting. After speaking with
Officer Zilli of the Mount Pleasant Police Department, Trooper
Hartman went to [Appellant’s] mother’s apartment in an attempt
to locate him. Although that initial attempt was unsuccessful,
police did finally locate [Appellant], who was 18 years old,
walking along Route 31 outside of Mount Pleasant Borough.
Trooper Brian Pollock testified that he also responded to the
dispatch, and he and his partner located [Appellant], who was
dressed in dark clothing and [was] carrying a backpack.
[Appellant] immediately raised his hands and said, “It’s in my
backpack, it’s in my backpack.” Inside the backpack, Trooper
Pollock found a five-shot revolver that was fully loaded. As
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Trooper Pollock was examining the gun for safety, [Appellant]
stated[,] “Be careful, there should be one live round in it.”
When Trooper Pollock noted that the gun was fully loaded,
[Appellant] stated, “I wasn’t sure if his friends were going to
come after me.” During his cursory search of the backpack,
Trooper Pollock also found what he believed to be bags of
marijuana and ammunition. A more thorough search of the
backpack was performed at a later time by Detective Timothy
Sethman of the Westmoreland County Detective Bureau. In the
backpack, Detective Sethman found a box containing 19 bullets
(Winchester .28 Special 130 grain), a black nylon Uncle Mike’s
holster, a purple Crown Royal bag containing two spent bullet
casings, two separate bullet casings, [Appellant’s] Pennsylvania
photo identification card, a digital scale, an opened box of clear
plastic baggies, a zipper hooded Air Jordan jacket, and a clear
plastic bag containing six individual clear plastic baggies of
marijuana.2 Detective Anthony Marcocci testified as an expert in
narcotic investigations and illegal drug sales. Det. Marcocci
acknowledged that the weight of the marijuana did not preclude
the possibility that [Appellant] could have possessed the
marijuana for personal use. However, considering the amount of
marijuana and the manner in which it was packaged, as well as
the paraphernalia (the plastic baggies and digital scale) that was
found in [Appellant’s] possession and which was located in close
proximity to the marijuana, and finally the fact that [Appellant]
was in possession of a gun, Det. Marcocci opined that
[Appellant] possessed the marijuana with the intent to deliver it
to another person or persons rather than for his own personal
use.
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2
The laboratory analysis of the vegetable material found in
[Appellant’s] backpack found that the material was in fact
marijuana and weighed 34.6 grams.
Trial Court Opinion (TCO), 4/2/14, at 2-4 (one footnote and citations to
record omitted).
Based on this evidence, the jury acquitted Appellant of attempted
murder, aggravated assault, and REAP, but convicted him of the remaining
drug and firearm offenses with which he was charged. On October 3, 2013,
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the court sentenced Appellant to a mandatory term of 5 to 10 years’
incarceration for the PWID conviction under 42 Pa.C.S. § 9712.1.1 The court
also imposed a concurrent term of 1 to 2 years’ incarceration for Appellant’s
firearm offense, but no further penalty for his remaining convictions. On
November 26, 2013, Appellant was resentenced for his PWID conviction to a
flat term of five years’ incarceration pursuant to section 9712.1 and
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1
That statute states, in pertinent part:
(a) Mandatory sentence.--Any person who is convicted of a
violation of section 13(a)(30) of the act of April 14, 1972 (P.L.
233, No. 64), known as The Controlled Substance, Drug, Device
and Cosmetic Act, when at the time of the offense the person or
the person's accomplice is in physical possession or control of a
firearm, whether visible, concealed about the person or the
person's accomplice or within the actor's or accomplice's reach
or in close proximity to the controlled substance, shall likewise
be sentenced to a minimum sentence of at least five years of
total confinement.
…
(c) Proof at sentencing.--Provisions of this section shall not be
an element of the crime, and notice thereof to the defendant
shall not be required prior to conviction, but reasonable notice of
the Commonwealth's intention to proceed under this section
shall be provided after conviction and before sentencing. The
applicability of this section shall be determined at sentencing.
The court shall consider any evidence presented at trial and shall
afford the Commonwealth and the defendant an opportunity to
present any necessary additional evidence and shall determine,
by a preponderance of the evidence, if this section is applicable.
42 Pa.C.S. § 9712.1(a), (c).
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Commonwealth v. Kleinicke, 895 A.2d 562 (Pa. Super. 2006) (en banc).”2
TCO at 1. Appellant filed timely post-sentence motions, which the court
denied. He then filed a timely notice of appeal, as well as a timely concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Herein, Appellant raises two questions for our review:
I. Whether the evidence was insufficient to sustain the verdict[?]
II. Whether the verdict was against the weight of the
evidence[?]
Appellant’s Brief at 6.
Before addressing these issues, we are compelled to sua sponte
address the legality of Appellant’s mandatory sentence of five years’
incarceration, imposed under 42 Pa.C.S. § 9712.1. See Commonwealth v.
Randal, 837 A.2d 1211, 1214 (Pa. Super. 2003) (stating “challenges to
‘[a]n illegal sentence can never be waived and may be raised sua sponte by
this Court’”). In this Court’s recent en banc decision in Newman, we held
that “the sentencing practice under Section 9712.1 is unconstitutional” in
light of Alleyne v. U.S., 133 S.Ct. 2151, 2160-2161 (2013) (holding that
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2
The trial court was required to impose a 5-year sentence because that
term was mandated by 42 Pa.C.S. § 9712.1(a). However, the court
recognized that to impose an indeterminate sentence of 5 to 10 years’
incarceration would have resulted in sentence that exceeded the statutory
maximum of 5 years’ imprisonment applicable to Appellant’s PWID
conviction. Therefore, relying on Kleinicke, the court imposed a flat 5-year
term of imprisonment.
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any fact that serves to aggravate the minimum sentence must be found by
the fact-finder beyond a reasonable doubt).3 Newman, 2014 WL 4088805
at *1, *10. We also rejected the Commonwealth’s argument “that
Subsection (a) of Section 9712.1, which sets the predicate for the
mandatory minimum sentence, survives constitutional muster and that only
Subsection (c), which directs that the trial court shall determine the
predicate of Subsection (a) by a preponderance of the evidence, fails.” Id.
at *13. Instead, we held that “Subsections (a) and (c) of Section 9712.1 are
essentially and inseparably connected” and, therefore, the unconstitutional
portion of the statute could not be severed from the rest. Id.
In light of Newman, it is clear that section 9712.1 is unconstitutional
as a whole and, thus, Appellant’s mandatory minimum sentence imposed
under that statute is illegal. Accordingly, we vacate Appellant’s judgment of
sentence for the PWID offense, and remand for resentencing without
consideration of any mandatory minimum sentence provided by section
9712.1.
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3
Because both Alleyne and Newman were decided during the pendency of
Appellant’s direct appeal, they apply retroactively to his case. See
Newman, 2014 WL 4088805, at *2 (noting the United States Supreme
Court’s holding that “[w]hen a decision of this Court results in a ‘new rule,’
that rule applies to all criminal case still pending on direct review”) (quoting
Schriro v. Summerlin, 542 U.S. 348, 351 (2004) (citation omitted)).
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Despite our disposition in this regard, we will address Appellant’s
challenges to the sufficiency and weight of the evidence to sustain his
convictions. First,
[i]n reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Commonwealth v. Moreno, 14 A.3d
133 (Pa. Super. 2011). Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
2009). The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Moreno, supra at 136.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).
Here, Appellant avers that the evidence was insufficient to support his
PWID conviction because police did not discover in his possession any “large
amounts of money, owe sheets, cell phones, or an amount of drugs
consistent with distribution.” Appellant’s Brief at 13. He emphasizes that
the Commonwealth’s expert, Detective Marcocci, admitted that the quantity
of drugs discovered in Appellant’s possession could have been for personal
use. Appellant also contends that “there is an absolute lack of evidence”
tying him to the backpack containing the drugs, and that “[t]here can be an
equal inference that the backpack was actually Grimm’s and [that Appellant]
grabbed it as he left the scene.” Id. at 13.
Similarly, Appellant maintains that his conviction for possession of a
firearm without a license cannot be sustained because “there was no nexus
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between [Appellant] and this specific weapon[,]” and there was no physical
evidence tying Appellant to the gun. Appellant’s Brief at 14. Instead,
Appellant claims that the evidence suggested the gun belonged to Grimm.
Appellant further argues that his convictions for possession of a controlled
substance and possession of drug paraphernalia were not supported by
sufficient evidence because “there [was] no proof that the items were
possessed by [Appellant].” Id.
Appellant’s arguments are clearly meritless. First, there was ample
evidence to prove that Appellant possessed the backpack and its contents.
Namely, Appellant was wearing the bag on his back when police detained
him, his photo identification card was found inside, and when the police
approached him, he raised his hands and stated, “[I]t’s in my backpack, it’s
in my backpack.” N.T. Trial, 7/9/13, at 132 (emphasis added). The fact
that police found marijuana, a digital scale, and plastic baggies inside the
backpack was sufficient to prove that Appellant possessed a controlled
substance and drug paraphernalia. Additionally, a gun was discovered inside
Appellant’s backpack, and it was clear Appellant knew about the weapon
because he told police its location and informed them that it was loaded.
Thus, Appellant’s conviction for possessing a firearm without a license was
also supported by adequate evidence.
In regard to Appellant’s PWID conviction, the discovery in Appellant’s
backpack of marijuana packaged into separate plastic baggies, more unused
plastic baggies, a digital scale, and a gun was compelling evidence.
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Moreover, while Detective Marcocci recognized that the total amount of
drugs could have been consistent with personal use, he ultimately opined
that it was possessed with intent to deliver in light of the drug paraphernalia
and Appellant’s possession of a gun. Grimm also testified that Appellant met
him in order to sell him marijuana. Based on the totality of this evidence,
the jury was able to conclude, beyond a reasonable doubt, that Appellant
committed PWID. See Commonwealth v. Jackson, 645 A.2d 1366, 1368
(Pa. Super. 1994) (stating that where the quantity of a controlled substance
does not make it clear whether it was possessed for personal use or
distribution, other factors to consider in determining whether defendant
intended to deliver the drugs include “the manner in which the controlled
substance was packaged, … the presence of drug paraphernalia, … [and]
expert opinion testimony” regarding “whether the facts surrounding the
possession of controlled substances are consistent with an intent to deliver
rather than with an intent to possess it for personal use”).
Lastly, Appellant challenges the weight of the evidence to sustain his
convictions.
A claim alleging the verdict was against the weight of the
evidence is addressed to the discretion of the trial court.
Accordingly, an appellate court reviews the exercise of the trial
court's discretion; it does not answer for itself whether the
verdict was against the weight of the evidence. It is well settled
that the jury is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses, and a new trial
based on a weight of the evidence claim is only warranted where
the jury's verdict is so contrary to the evidence that it shocks
one's sense of justice. In determining whether this standard has
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been met, appellate review is limited to whether the trial judge's
discretion was properly exercised, and relief will only be granted
where the facts and inferences of record disclose a palpable
abuse of discretion.
Commonwealth v. Houser, 18 A.3d 1128, 1135-1136 (Pa. 2011) (citations
and internal quotation marks omitted).
In support of his challenge to the weight of the evidence, Appellant
solely avers that Grimm’s “testimony was consistently contradictory and the
Commonwealth failed to link [Appellant] to the items in question, namely
the weapon and the drugs. The evidence, and the lack of evidence, proves
that this verdict shocks ‘one’s sense of justice.’” Appellant’s Brief at 14-15.
In rejecting this claim, the trial court relied on its summary of the evidence
presented by the Commonwealth at Appellant’s trial, and concluded that it
“was of adequate weight to support the verdict of the jury….” TCO at 5
(unpaginated). Based on our discussion, supra, our review of the record,
and Appellant’s cursory argument on appeal, we ascertain no abuse of
discretion in the court’s decision to deny his weight of the evidence claim.
Accordingly, we conclude that Appellant’s challenges to the weight and
sufficiency of the evidence are meritless. However, under Newman, his
mandatory sentence of five years’ incarceration imposed under 42 Pa.C.S. §
9712.1 is illegal. Consequently, we vacate his judgment of sentence and
remand for resentencing.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/8/2014
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