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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
LEON PATRICK WAGNER
Appellant No. 1163 WDA 2014
Appeal from the Judgment of Sentence February 25, 2014
In the Court of Common Pleas of Venango County
Criminal Division at Nos: CP-61-CR-0000270-2013
and CP-61-CR-0000276-2013
BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED APRIL 27, 2015
Appellant Leon Patrick Wagner appeals from the Court of Common
Pleas of Venango County’s (trial court) February 25, 2014 judgment of
sentence. Upon review, we vacate the sentence and remand the case to the
trial court for resentencing.
On June 6, 2013, Officer Steven Rembold, Oil City Police Department,
charged Appellant with, inter alia, delivery of a controlled substance
(heroin)1 and conspiracy to deliver a control substance (heroin)2 (First
Case). In his affidavit of probable cause accompanying the complaint,
Officer Rembold alleged in part:
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1
35 P.S. § 780-113(a)(30).
2
18 Pa.C.S.A. § 903(a); 35 P.S. § 780-113(a)(30).
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(3). On 09MAR13 at approx. 2014 I was dispatched to a male
unconscious in the area between SouthSide Country Fair and
CVS. Upon arrival I found a white male unconscious with wha[t]
appeared to be agonal breathing. The male, later identified by a
PA [driver’s license I] located in his wallet as Raymond Hinojosa,
was partially on the pavement of the CVS parking lot and
partially on the wooded section between CVS and Country Fair.
(4) On 12MAR13 Ramond Hinojosa came on station with family
members and spoke with Chief Wenner and advised that he was
at a meeting and [Appellant] called his cell and asked [Hinojosa]
to come over to [Appellant’s] [r]esidence. Upon arrival Hinojosa
stated that they [Appellant] and his girlfriend Kathy brought out
heroin[] and a syringe and handed it to [Hinojosa]. Hinojosa
stated there was an open fold of heroin[] on a mirror and what
they handed him was a closed up fold of heroin[]. At that point
Hinojosa stated he shot up the heroin[] and that was the last
[thing] he remembers.
Affidavit of Probable Cause, 5/22/13 (capitalization omitted). On June 13,
2013, Officer Rembold filed another criminal complaint against Appellant,
charging Appellant with, inter alia, illegal possession of a firearm under 18
Pa.C.S.A. § 6105(c)(2) (persons not to possess) (Second Case). In his
affidavit of probable cause accompanying the second complaint, Officer
Rembold alleged in pertinent part that “[w]hile serving warrant at
[Appellant’s] residence (2) firearms were in plain view. .22 cal rifle and a
30-06 rifle. Both rifles were seized and logged into evidence.” Affidavit of
Probable Cause, 6/3/13.
On November 15, 2013, a jury found Appellant guilty of all charged
offenses in the First Case. On January 24, 2014, a jury found Appellant
guilty of illegal possession of a firearm in the Second Case. For purposes of
sentencing, the trial court consolidated both cases filed against Appellant.
On February 25, 2014, the trial court sentenced Appellant to an aggregate of
5 ½ to 11 years in prison. Specifically, with respect to the delivery of heroin
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conviction in the First Case, the trial court sentenced Appellant to the
mandatory minimum sentence of 24 months’ imprisonment, “because the
jury found that it occurred within one thousand (1000) feet of a school zone”
in violation of 18 Pa.C.S.A. § 6317 (drug-free school zones).3 On the
Second Case, the trial court sentenced Appellant to three to six years’
imprisonment consecutive to the sentence imposed in the First Case.
On March 6, 2014, Appellant filed a post-sentence motion, challenging
his conviction for conspiracy to deliver heroin and the discretionary aspects
of his sentence. The trial court issued an order and opinion on June 9, 2014,
denying the motion. Appellant timely appealed to this Court.
Following Appellant’s filing of a Pa.R.A.P. 1925(b) statement of errors
complained of on appeal, the trial court issued a Pa.R.A.P. 1925(a) opinion,
largely adopting its June 9, 2014 opinion in support of its order denying
Appellant’s post-sentence motion.
On appeal, Appellant raises two issues for our review:
[1.] Is the [s]entence imposed upon [Appellant], although within
the standard range, too harsh for the conduct he was found
guilty of committing, and thus unreasonable, manifestly
excessive and an abuse of discretion?
[2.] Was the evidence presented at the time of trial insufficient
to sustain the guilty verdict in [the First Case] at [c]ount 2
[c]riminal [c]onspiracy/[d]elivery of [h]erion when [Appellant’s]
sole alleged co-conspirator was acquitted of the conspiracy
charges and no other conspirators were alleged?
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3
On the First Case, the trial court also sentenced Appellant to a consecutive
sentence of six to 12 months’ imprisonment for offenses not material to this
appeal.
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Appellant’s Brief at 6.
We first address Appellant’s second argument that the evidence at trial
was insufficient to convict him of conspiracy to deliver heroin.
Preliminarily, “[a] claim challenging the sufficiency of the evidence is a
question of law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa.
2000).
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence 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. In applying the above test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any 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. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
finder of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014)
(emphasis added), appeal denied, 95 A.3d 275 (Pa. 2014).
Section 903 of the Crimes Code, relating to criminal conspiracy
provides in relevant part:
(a) Definition of conspiracy.--A person is guilty of conspiracy
with another person or persons to commit a crime if with the
intent of promoting or facilitating its commission he:
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(1) agrees with such other person or persons that they or
one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to
commit such crime; or
(2) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt or
solicitation to commit such crime.
....
(e) Overt act.--No person may be convicted of conspiracy to
commit a crime unless an overt act in pursuance of such
conspiracy is alleged and proved to have been done by him or by
a person with whom he conspired.
18 Pa.C.S.A. § 903(a), (e). “To sustain a conviction for criminal conspiracy,
the Commonwealth must establish that the defendant (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) and overt act was done in
furtherance of the conspiracy.” Commonwealth v. Hennigan, 753 A.2d
245, 253 (Pa. Super. 2000) (citation omitted). “Because it is difficult to
prove an explicit or formal agreement to commit an unlawful act, such an
act may be prove[n] inferentially by circumstantial evidence, i.e., the
relations, conduct or circumstances of the parties or overt acts on the part of
the co-conspirators.” Commonwealth v. Thomas, 65 A.3d 939, 943 (Pa.
Super. 2013). Thus, “[t]he Commonwealth does not have to prove that
there was an express agreement to perform the criminal act; rather, a
shared understanding that the crime would be committed is sufficient.”
Commonwealth v. Nypaver, 69 A.3d 708, 715 (Pa. Super. 2013)
(emphasis added). Finally, we have identified four factors to be utilized in
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determining the sufficiency of the evidence supporting the existence of a
conspiracy:
Among the circumstances which are relevant, but not sufficient
by themselves, to prove a corrupt confederation are: (1) an
association between alleged conspirators; (2) knowledge of the
commission of the crime; (3) presence at the scene of the crime;
and (4) in some situations, participation in the object of the
conspiracy.
Commonwealth. v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002),
citing Commonwealth v. Carter, 416 A.2d 523 (Pa. Super. 1979).
Here, Appellant appears to challenge only the first factor. In this
regard, Appellant argues the Commonwealth failed to offer any evidence
that his alleged co-conspirator, i.e., his wife (Kathy Novak) who was
acquitted of the conspiracy charge, was “part of the conspiracy
whatsoever.” Appellant’s Brief at 14. We disagree. As the trial court noted,
“there was more than enough evidence adduced from the various
testimonies presented at trial by which the jury could convict [Appellant] on
Count 2, Criminal Conspiracy – Deliver Heroin.” Trial Court’s Opinion,
6/9/14, at 9. The trial court summarized the testimonies as follows:
Appellant and his wife[/co-defendant] were at their place
of residence located in an apartment complex at 214 Lincoln
Street, Oil City, Pa., (“Apartment”). Sometime between half
past seven o’clock and ten minutes to eight o’clock that evening,
Bill Exley (“Exley”), Joel Balot, (“Balot”) and Raymond Hinojosa
(“Hinojosa” or “Bookie”) arrived in turn at the Apartment . . . .
Prior to Exley’s arrival, Balot testified he drove his minivan, a
Dodge Caravan, to the Apartment in order to buy heroin from
[Appellant] and Novak[, i.e., his wife]. Balot further testified
that when he knocked on the door, Novak answered and
proceeded to let him in. According to the testimony of both
Exley and Balot, Hinojosa or “Bookie” was already at the
Apartment when they each arrived. Both Exley and Balot stated
that when they each arrived at the Apartment, Bookie was
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overdosing (“OD’ing”). According to Exley, Bookie was sitting on
the couch in the Apartment gasping for air and unconscious. . . .
In addition, Exley and Balot testified that they, along with
[Appellant] and Novak, each attempted to revive Bookie by
slapping him, getting air into him, and talking to him.
....
The jury also heard from the victim, [Hinojosa], also known as
Bookie. Bookie, the nephew of Novak, [Appellant’s] wife,
testified that he drove to the Apartment and arrived there about
a quarter to eight on the evening of March 9, 2013. Bookie
stated his purpose in going there was to visit his aunt, but that
while he was there he was given two folds of heroin by
[Appellant]. Bookie also testified that he had just completed
sixteen (16) days of rehabilitation for heroin abuse five days
prior to visiting his aunt and [Appellant]. Bookie stated that
while Novak, his aunt, was present in the Apartment, he was
handed the heroin by [Appellant]. Bookie testified he then “shot
up” the heroin intravenously in the living room using supplies
given [to] him by [Appellant]. [Bookie] further stated that both
[Appellant] and [Novak] were present when he was using it. . . .
The jury also heard the testimony of Amy Baron (“Baron”),
a tenant in the same apartment complex, whose apartment is
situated directly beneath [Appellant] and Novak’s apartment.
[Baron] testified that she frequented their apartment in order to
buy heroin to get her fix. In fact, that very evening, March 9,
2013, Baron called [Appellant’s] apartment in order to buy
narcotics.
Id. at 2-5 (internal record citation omitted). Based on our review of the
entire record and viewing the evidence in the light favorable to the
Commonwealth, thereby giving it the benefit of the reasonable inferences
derived therefrom, we conclude that the Commonwealth presented sufficient
evidence to sustain Appellant’s conviction for conspiracy to deliver heroin.
Indeed, in the matter sub judice there was a strong association between
Appellant and his alleged co-conspirator by virtue of their marriage. See
Nypaver, 69 A.3d at 715 (“Appellant was married to the perpetrator, and
accordingly, there was a strong association between them.”). Thus, it was
reasonable for the jury to infer that Appellant had a shared understanding to
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deliver the heroin. Id. As the trial court noted, “it stretches credulity to
believe [Appellant] possessed such drugs without the knowledge or, at least,
the tacit agreement of Novak. Moreover, Bookie testified that when he was
given the heroin, only he, [Appellant], and Novak were present at the
Apartment.” Id. at 8. The jury, therefore, could have inferred by
circumstantial evidence that Appellant engaged in a criminal conspiracy with
his wife. Accordingly, given the circumstantial evidence, the trial court did
not err in concluding that the jury had sufficient evidence to convict
Appellant of conspiracy to delivery heroin.
To the extent Appellant argues he should not have been convicted for
criminal conspiracy because his co-conspirator/wife was acquitted of the
same during the joint trial, we disagree. “[O]ur Courts have held that the
acquittal of a defendant’s sole alleged co-conspirator does not preclude
prosecution and conviction of that defendant on a conspiracy charge.”
Commonwealth v. Fremd, 860 A.2d 515, 521 (Pa. Super. 2004)
(emphasis added), appeal denied, 889 A.2d 1213 (Pa. 2005), citing
Commonwealth v. Campbell, 651 A.2d 1096, 1098 (Pa. 1994). “The
express language of the statute does not require that an alleged co-
conspirator be charged or convicted of the conspiracy.” Fremd, 860 A.2d at
521. Furthermore, we have held that inconsistent verdicts are not a basis
for reversal. See Commonwealth v. Larsen, 682 A.2d 783, 789 (Pa.
Super. 1996). It is well-settled that juries may render inconsistent verdicts.
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See Commonwealth v. Coon, 695 A.2d 794, 799 (Pa. Super. 1997),
appeal denied, 717 A.2d 1027 (1998). “The rationale for allowing
inconsistent verdicts is that it is the jury’s sole prerogative to decide on
which counts to convict in order to provide a defendant with sufficient
punishment. An acquittal cannot be interpreted as a specific finding in
relation to some of the evidence.” Commonwealth v. Miller, 657 A.2d
946, 948 (Pa. Super. 1995) (citation and quotation marks omitted).
Inconsistent verdicts by a jury will not be disturbed, provided that the
Commonwealth produces sufficient evidence of a crime for which the
defendant is convicted. Id. Instantly, as noted above, the Commonwealth
indeed produced sufficient evidence to sustain Appellant’s conviction for
conspiracy to deliver heroin.
Next, based on a recent panel decision of this Court in
Commonwealth v. Bizzel, 107 A.3d 102 (Pa. Super. 2014), we must
review the trial court’s decision to sentence Appellant to a mandatory
minimum sentence of 24 months’ imprisonment for delivery of heroin in a
school zone under Section 6317 (drug-free school zones) of the Crimes
Code. In Bizzel, this Court ruled Section 6317 unconstitutional in its
entirety based on Newman.4 Bizzel, 107 A.3d at 106.
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4
Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc).
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Initially, we point out that, pursuant to Alleyne,[5] Section
6317(b) is now an element of the crime despite the language in
the statute specifically stating that it was not an element.
Thus, the legislature clearly did not intend the result mandated
by the decision in Alleyne.
Additionally, we conclude that [Section] 6317(b) cannot be
severed from the rest of the statute because there would be no
enforcement mechanism. In addressing a similar issue
regarding Alleyne and 42 Pa.C.S. § 9712.1, this Court explained
as follows:
We find that Subsections (a) and (c) of Section 9712.1 are
essentially and inseparably connected. Following Alleyne,
Subsection (a) must be regarded as the elements of the
aggravated crime of possessing a firearm while trafficking
drugs. If Subsection (a) is the predicate arm of Section
9712.1, then Subsection (c) is the “enforcement” arm.
Without Subsection (c), there is no mechanism in place to
determine whether the predicate of Subsection (a) has
been met.
. . . Newman, 99 A.3d [at] 101 . . . . In the case at bar, after
reviewing the language in [Section] 6317 pursuant to our rules
of statutory construction, it is apparent that Section 6317(a) is
the predicate arm and Section 6317(b) is the enforcement arm.
Without 6317(b) there is no mechanism in place to determine
whether the predicate enumerated in Section 6317(a) has been
met.
[T]he United States Supreme Court’s decision in Alleyne
rendered Section 6317(b) unconstitutional. In the instant case,
after careful review and pursuant to the rules of statutory
construction set forth in 1 Pa.C.S.[A.] § 1925, we conclude that
the remainder of [Section] 6317 is inseparably connected with
and dependent upon the unconstitutional provision in Section
6317(b). It cannot be presumed the General Assembly would
have enacted the remaining provisions without Section 6317(b),
and the remaining provisions, standing alone, are incomplete
and are incapable of being executed in accordance with the
legislative intent. Therefore, we are constrained to hold that 18
Pa.C.S.[A.] § 6317 is unconstitutional.
Id. at 105-06 (emphasis in original) (footnotes omitted). Thus, given our
decision in Bizzel, we must conclude that Appellant’s sentence under
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5
Alleyne v. United States, 133 S. Ct. 2151, 2161-63 (2013) (holding that
any fact other than a prior conviction that triggers a mandatory minimum
sentence must be found by a jury beyond a reasonable doubt).
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Section 6713 is illegal. See Commonwealth v. Valentine, 101 A.3d 801,
809 (Pa. Super. 2014) (because Alleyne issues implicate the legality of a
sentence, they are non-waivable and we may raise them sua sponte); see
also Commonwealth v. Vargas, 108 A.3d 858, 876 n.13 (Pa. Super.
2014) (en banc) (“Although Appellant has not raised any issue relating to
the legality of his sentence, we note that legality of sentence questions are
not waivable and may be raised sua sponte by this Court.”) (citation and
quotation marks omitted). Accordingly, we vacate Appellant’s sentence and
remand this case to the trial court for resentencing without the application of
Section 6317.6 See Commonwealth v. Young, 922 A.2d 913, 918 n.9 (Pa.
Super. 2007) (where our disposition upsets the trial court’s sentencing
scheme, we must vacate and remand for resentencing).
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2015
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6
Based on our decision to vacate Appellant’s sentence, we need not address
his first argument challenging the discretionary aspects of his sentence.
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