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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ANGEL RAMOS-DELGADO, : No. 482 EDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, December 23, 2013,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0014888-2012
BEFORE: FORD ELLIOTT, P.J.E., OLSON AND WECHT, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 03, 2015
Appellant appeals the judgment of sentence imposed following his
conviction for possession of a controlled substance with intent to deliver and
criminal conspiracy.1 Finding that the sentence is unconstitutional under
recent federal and state decisions, we vacate the sentence and remand for
resentencing.
Appellant was convicted on September 30, 2013, following a bench
trial. The trial court summarized the evidence against appellant:
The evidence admitted during the stipulated
trial established that on September 19, 2012,
Philadelphia Police Officer Regino Fernandez and
other members of the Narcotics Field Unit met with a
confidential informant (“CI”) to arrange a controlled
narcotics purchase from 3235 North Rorer Street in
Philadelphia. N.T., Preliminary Hearing, 12/13/2012,
1
35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 903(c).
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pp. 5-6.[Footnote 2] The CI was searched for
narcotics and U.S. currency, with negative results.
Id. Then, the CI was provided with $160 in
prerecorded “buy money” and sent to the target
location. Id. Officer Fernandez, while undercover,
followed the CI and established a surveillance
location about fifteen to thirty feet from the target.
Id. at 6-7, 10. The CI approached the Defendant
and Mr. Gonzalez and engaged the men in brief
conversation. Id. at 7. He then handed Defendant
the buy money. Id. Mr. Gonzalez entered the
residence and returned in approximately one to two
minutes. Id. When he emerged from the house, he
handed the CI an object. Id. After the transaction,
both Defendant and Mr. Gonzales returned to the
residence. Id. The CI was followed out of the area
by Officer Morales (first name not given). Id. The
CI provided Officer Fernandez with a clear, plastic
baggy tied in a knot, containing a large chunk of an
off-white substance alleged to be crack cocaine. Id.
The recovered substance tested positive for crack
cocaine base. Id.
[Footnote 2] During the hearing,
Officer Fernandez positively identified the
Defendant and his co-defendant,
Tommy Gonzalez, as the men involved in
the narcotics transaction. Id. at 6.
On September 20, 2012, Police Officer Joseph
McCook, along with Officer Morales, participated in
the narcotics investigation targeting the Rorer Street
residence. Id. at 16. Again, a CI was used to make
a controlled narcotics purchase. Id. Officer Morales
searched the CI for narcotics and U.S. currency. Id.
at 16-17. Officer Morales then provided the CI with
$180 in prerecorded buy money. Id. at 17.
Officer McCook observed the Defendant emerge from
the target residence prior to the CI’s arrival. Id. at
17. The Defendant, while speaking with the CI,
walked directly past Officer McCook. Id. The
Defendant then accepted $180 of the buy money,
and handed the CI a small, white object. Id. The
object was later surrendered to Officer Morales, who
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conducted a field test with positive results. Id. at
17-18. On September 21, 2012, officers received
information and proceeded to 3207 Rorer Street, a
short distance from the target location. Id. at 18-
19. There, officers arrested the Defendant and
Mr. Gonzales. Id. at 18. Currency in the amount of
$420 was recovered from Mr. Gonzales; nothing was
recovered from Defendant. Id. at 19. Officers then
executed a search and seizure warrant on
3235 North Rorer Street. Id. Recovered from inside
the residence, in the refrigerator, were four bundles
of heroin containing a total of fifty packets of the
drug. Id. at 20. In addition to the heroin, there
were three clear bags containing powder cocaine,
and one clear bag containing crack cocaine. Id. All
of which tested positive for narcotics. Id. There
was also one pill bottle in the kitchen cabinet that
contained fifty pills alleged to be Clonazepam (a
benzodiazepine). Id. at 21. Mail in the name of
Mr. Gonzales and photographs of him were located in
the living room of the residence. Id. Also located in
the living room, were two scales and one bag
containing new and used yellow Ziploc packets. Id.
In addition to the testimony, summarized
above, from the preliminary hearing, the
Commonwealth moved into evidence the 75-49
(police investigation report), the narcotics seizure
analysis, and the property receipts in this case.
N.T., 09/30/2013, p. 10. Defense counsel stipulated
to the admissibility of “all non-hearsay evidence.”
Id.
Trial court opinion, 8/1/14 at 2-4.
Appellant raises the following issues on appeal:
I. Whether the trial court erred in applying the
mandatory minimum sentencing statute,
18 Pa.C.S. § 7508, because procedural
provisions of section 18 Pa.C.S. § 7508(b) of
the statute are unconstitutional under Alleyne
v. United States, 133 S.Ct. 2151 (2013) and
Commonwealth v. Newman, 2014 PA Super
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178, the statute is not severable under
1 Pa.C.S. § 1925, and therefore the mandatory
minimum sentencing statute is wholly void and
unenforceable?
II. Was the evidence insufficient to establish
conspiracy beyond a reasonable doubt where
the Commonwealth failed to present evidence
that the defendant had ongoing access to the
drugs sold on the first day and those recovered
from the house, and therefore presented
insufficient evidence that the drugs recovered
at the end of a three day surveillance and
execution of a search warrant, were possessed
by the appellant within the, and in furtherance
of the conspiracy.
III. Did the trial court err in applying the
mandatory minimum sentencing statute at
18 Pa. C.S. § 7508 to the conviction for
criminal conspiracy?
Appellant’s brief at 2.
In his first issue, appellant questions the constitutionality of his
mandatory minimum sentence following the decisions in Alleyne v. United
States and Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014)
(en banc). Alleyne held that any fact that served to aggravate the
minimum sentence could not be considered a sentencing factor determined
by the trial court by a preponderance of the evidence, but had to be found
by a jury beyond a reasonable doubt. Newman ruled that Alleyne
specifically rendered the mandatory minimum sentencing provision under
42 Pa.C.S.A. § 9712.1 unconstitutional.
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Newman also held that both Subsections 9712.1(a) and 9712.1(c)
were rendered void over an argument that Subsection 9712.1(a) was
severable from Subsection 9712.1(c), which was the subsection rendered
unconstitutional under Alleyne. Newman, 99 A.3d at 101. Pursuant to
that argument, the Commonwealth suggested merely remanding the case
for review by a sentencing jury. Newman rejected that approach as
tantamount to legislating a new enforcement procedure, and that it was
more appropriately the province of the General Assembly to address.
Newman effectively “wiped the slate clean,” allowing no sentence to stand
under Section 9712.1, because that section is unconstitutional in whole.
Instantly, Subsection 7508(a)(3)(i) imposes a one-year mandatory
minimum sentence based upon the weight of the drugs and a three-year
mandatory minimum sentence if there is also a prior drug conviction.
Subsection 7508(b) is nearly identical to Subsection 9712.1(c) in Newman:
(b) Proof of [sic] sentencing.--Provisions of this
section shall not be an element of the crime.
Notice of the applicability of this section 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 evidence presented at trial,
shall afford the Commonwealth and the
defendant an opportunity to present necessary
additional evidence and shall determine, by a
preponderance of the evidence, if this section
is applicable.
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18 Pa.C.S.A. § 7508(b).
The lower court found that appellant’s mandatory minimum sentence
was sustainable in spite of Alleyne because, as the finder-of-fact in a bench
trial, it had determined the weight of the drugs beyond a reasonable doubt,
and because it found the unconstitutional Subsection 7508(b) to be
severable from Subsection 7508(a). (Trial court opinion, 8/1/14 at 9-12.)
We note that another panel of this court has subsequently ruled that
Subsection 7508(b) is not severable, under the logic of Newman, and that
Section 7508 is unconstitutional in total. Commonwealth v. Fennell, 105
A.3d 13, 17-20 (Pa.Super. 2014). We agree. Consequently, we will vacate
the judgment of sentence entered below and remand for resentencing. We
will now briefly review the other two issues raised by appellant.
In his second issue on appeal, appellant contends that the evidence
was insufficient to establish a conspiracy such that the drugs recovered from
his co-defendant’s house could be attributed to him. We find no merit in this
argument.
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
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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. Harden, 103 A.3d 107, 111 (Pa.Super. 2014), quoting
Commonwealth v. Phillips, 93 A.3d 847, 856 (Pa.Super. 2014) (citations
omitted; bracketed material in original).
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) an overt act was
done in furtherance of the conspiracy.
Commonwealth v. Hennigan, 753 A.2d 245, 253
(Pa.Super.2000). “This overt act need not be
committed by the defendant; it need only be
committed by a coconspirator.” Id. With respect to
the agreement element, we have explained:
The essence of a criminal conspiracy is a
common understanding, no matter how it
came into being, that a particular
criminal objective be accomplished.
Therefore, a conviction for conspiracy
requires proof of the existence of a
shared criminal intent. An explicit or
formal agreement to commit crimes can
seldom, if ever, be proved and it need
not be, for proof of a criminal partnership
is almost invariably extracted from the
circumstances that attend its activities.
Thus, a conspiracy may be inferred
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where it is demonstrated that the
relation, conduct, or circumstances of the
parties, and the overt acts of the co-
conspirators sufficiently prove the
formation of a criminal confederation.
The conduct of the parties and the
circumstances surrounding their conduct
may create a web of evidence linking the
accused to the alleged conspiracy beyond
a reasonable doubt.
Commonwealth v. Melvin, 103 A.3d 1, 42-43 (Pa.Super. 2014), quoting
Commonwealth v. McCall, 911 A.2d 992, 996-997 (Pa.Super. 2006).
The existence of a conspiracy between appellant and his co-defendant,
Gonzalez, to illegally possess and sell controlled substances was readily
demonstrated by the evidence at trial. In one drug transaction, the CI
approached appellant and Gonzalez as they stood together. The CI gave
appellant the money and then Gonzalez went into his residence, retrieved
the drugs, and handed them to the CI. Afterward, appellant and Gonzalez
returned to Gonzalez’s residence. In another controlled buy, appellant
emerged from Gonzalez’s residence alone. When the CI arrived, he gave
appellant money and appellant gave the CI drugs. The first transaction
showed appellant and Gonzalez jointly conducting a drug sale with appellant
handling the money and Gonzalez handling the drugs; hence, a conspiracy
to possess a controlled substance with intent to deliver. The second episode
showed that appellant had full access to Gonzalez’s house and the drugs
stored there.
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Moreover, as to the drugs stored in Gonzalez’s residence, we note that
a conspirator is criminally liable for the acts of a co-conspirator in the
furtherance of the conspiracy:
Once there is evidence of the presence of a
conspiracy, conspirators are liable for acts of
co-conspirators committed in furtherance of the
conspiracy. Even if the conspirator did not act as a
principal in committing the underlying crime, he is
still criminally liable for the actions of his
co-conspirators taken in furtherance of the
conspiracy.
Commonwealth v. Vargas, 108 A.3d 858, 874 (Pa.Super. 2014), quoting
Commonwealth v. Lambert, 795 A.2d 1010, 1016-1017 (Pa.Super. 2002)
(en banc), appeal denied, 805 A.2d 521 (Pa. 2002). Once the first
transaction proved the conspiracy, appellant was criminally liable for any
drugs that Gonzalez subsequently stored at his residence to be later sold by
him and appellant. The evidence of conspiracy was sufficient to find
appellant criminally liable for the drugs found in Gonzalez’s residence. There
is no merit here.
Finally, appellant contends that 18 Pa.C.S.A. § 7508 only authorizes a
mandatory minimum sentence for the drug conviction and not for the
conspiracy conviction. Appellant maintains that the concurrent mandatory
minimum three to six-year sentence that was imposed as to his conspiracy
conviction is, therefore, illegal. Both the trial court and the Commonwealth
concede that appellant is correct. (Trial court opinion, 8/1/14 at 6-8;
Commonwealth’s brief at 11.) We note that our supreme court has held that
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Section 7508 does not authorize an additional mandatory minimum sentence
for a related conspiracy conviction. Commonwealth v. Johnson, 26 A.3d
1078, 1091-1092 (Pa. 2011). Consequently, appellant’s sentence on the
conspiracy conviction must be vacated on this basis also.
Accordingly, for the reasons stated in this memorandum, appellant’s
sentence will be vacated and the matter shall be remanded for
re-sentencing.
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
Wecht, J. joins the Memorandum.
Olson, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/3/2015
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