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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
MARCEL JENKINS, : No. 3451 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, June 22, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0014283-2011
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MARCEL JENKINS, : No. 1753 EDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, June 22, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0014283-2011
BEFORE: BOWES, J., DUBOW, J. AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 16, 2017
Marcel Jenkins appeals the judgment of sentence in which the Court of
Common Pleas of Philadelphia County sentenced him to serve 2 to 4 years’
imprisonment for possession with intent to deliver a controlled substance
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(“PWID”) followed by a consecutive term of five years’ probation for
conspiracy to commit PWID.1 We affirm.
The facts, as recounted by the trial court, are as follows:
On September 8, 2011, as a result of
information received, two plainclothes narcotics
Philadelphia police officers, Officer Thomas Clarke
and Officer Richard Gramlich, set up surveillance at
the 2800 block of Kensington Avenue, an area
notorious for drug trafficking. The officers observed
[appellant] and Michael Taylor on Kensington Avenue
in what, from their experience, appeared to be
several drug transactions. (N.T. 12-4-2014, pp. 33-
40, 96-102). During their surveillance over the next
hour, the officers observed numerous transactions in
which [appellant] and Taylor would retrieve objects
directly from either a pay phone, or from a white
trash can located inside of a store on that street, and
then exchange that object for U.S. Currency with the
individual who had just approached them. (N.T.
12-4-2014, pp. 37-38). Officer Richard Gramlich
testified that on two occasions, individuals who had
just taken part in one of these exchanges had the
clear packet they had received still visible in their
hands when they walked past his vehicle. Officer
Gramlich further testified that he immediately
recognized the packets as heroin. (N.T. 12-4-2014,
pp. 101-102).
Once backup uniformed officers arrived to
arrest [appellant] and Taylor, a large amount of cash
was found on [appellant’s] person, and the police
confiscated marijuana from the white trash can
inside the store, and heroin from the pay phone.
(N.T. 12-4-2014, pp. 43-44, 128-129). The parties
stipulated to the chemist report substantiating that
the items seized were, indeed, marijuana and heroin.
(N.T. 12-4-2014, p. 132).
1
35 P.S. § 780-113(a)(30) and 18 P.S. § 903(c), respectively.
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Trial court opinion, 7/15/16 at 2-3.
On December 5, 2014, following a trial, the jury returned guilty
verdicts on the charges for which appellant was sentenced. On June 22,
2015, the trial court imposed the sentence set forth above. On July 1, 2015,
appellant filed a post-sentence motion.
On August 12, 2015, appellant filed a notice of appeal to this court.
On September 4, 2015, this court issued a rule to show cause as to why the
appeal should not be quashed as interlocutory because the trial court had
not entered an order regarding the post-sentence motion. On October 26,
2015, this court quashed the appeal as interlocutory.
Also, on October 26, 2015, the trial court denied the post-sentence
motion on the record but failed to enter an order on the docket. On
November 12, 2015, appellant filed a notice of appeal to this court. On
December 17, 2015, this court quashed the appeal as interlocutory because
the trial court had not entered an order regarding the post-sentence motion.
By order dated June 1, 2016, the trial court entered an order that the
post-sentence motion was denied without a hearing. On June 10, 2016,
appellant filed a notice of appeal to this court. On August 5, 2016, this court
dismissed this appeal for failure to comply with Pa.R.A.P. 3517 because
appellant did not file a docketing statement. On August 9, 2016, appellant
requested reinstatement of the appeal because he sent the docketing
statement under the docket number of the November 12, 2015 appeal
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(No. 3451 EDA 2015) and not under the docket number of the June 10,
2016 appeal (No. 1753 EDA 2016). Appellant requested that this court
permit the appeal docketed at No. 1753 EDA 2016 to proceed and to dismiss
as duplicative the appeal docketed at No. 3451 EDA 2015.
By order filed on August 29, 2016, this court granted the application
for reinstatement, vacated the August 4, 2016 order, and reinstated the
appeal. This court denied appellant’s application to dismiss the appeal at
No. 3451 EDA 2015 and consolidated the two appeals. This court also
announced that the issue of whether the June 1, 2016 order denying the
post-sentence motion is valid and/or timely would be decided by this panel.
This court finds that the order is valid in that no order was ever entered
previously even though the motion had been denied in open court. Twice,
appellant had his appeal quashed because no order had been issued to deny
the post-sentence motion. In the interest of allowing appellant his day in
court to present his appeal, this court will treat the June 1, 2016 order as
valid and timely.
Before this court, appellant contends that the evidence was insufficient
to convict him of PWID and conspiracy. Appellant also contends that the
trial court abused its discretion when it sentenced him to 2 to 4 years’
imprisonment plus five years of probation.
Initially, appellant contends that the evidence was insufficient to
support his convictions.
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A claim challenging the sufficiency of the evidence is
a question of law. Commonwealth v. Widmer,
560 Pa. 308, 319, 744 A.2d 745, 751 (2000). In
that case, our Supreme Court set forth the
sufficiency of the evidence standard:
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.
Commonwealth v. Karkaria, 533 Pa.
412, 625 A.2d 1167 (1993). 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.
Commonwealth v. Santana, 460 Pa.
482, 333 A.2d 876 (1975). 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.
Chambers, 528 Pa. 558, 599 A.2d 630
(1991).
Id. at 319, 744 A.2d at 751.
Commonwealth v. Morgan, 913 A.2d 906, 910 (Pa.Super. 2006).
Section 13(a)(30) of The Controlled Substance, Drug, Device and
Cosmetic Act provides:
(a) The following acts and the causing thereof
within the Commonwealth are hereby
prohibited:
....
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(30) 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
licensed 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).
Appellant argues that the Commonwealth’s evidence was insufficient to
establish PWID. Appellant asserts that Officer Thomas Clarke (“Officer
Clarke”) of the Philadelphia Police Department identified an individual who
wore a “brown/orange Adidas hooded sweatshirt” and another individual who
met with several other individuals and retrieved items from a phone booth or
a trash can in a Chinese store in exchange for United States currency.
(Notes of testimony, 12/4/14 at 61.) Appellant casts doubt on Officer
Clarke’s ability to see these exchanges from his position parked across the
intersection when he had no binoculars. Appellant argues that when he was
arrested, Officer Clarke should have been able to determine that he was not
the individual Officer Clarke initially observed because he was not wearing
an Adidas hooded sweatshirt but was wearing a brown polo shirt. (Id. at
63.) Appellant further argues that the police did not recover any drugs,
money, telephones, records of drug transactions, scales, or other evidence
of drug paraphernalia. Also, the only connection at all between appellant
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and the car that was seized was a key that allegedly was around appellant’s
neck though the key was not produced in evidence.
Appellant’s argument falls short of the mark. He appears to attack the
credibility of the witnesses and the evidence rather than the sufficiency of
the evidence. Sufficiency claims present questions of law while credibility
presents questions of fact. See Widmer, 744 A.2d at 751-752.
The Commonwealth presented sufficient evidence to establish a
conviction for PWID. Officer Clarke testified that he had extensive training
and experience in the area of narcotics. In fact, he estimated that he had
witnessed the sale of narcotics more than 10,000 times. (Notes of
testimony, 12/4/14 at 30-33.) Officer Clarke testified that on September 8,
2012, between 2:10 and 3:00 p.m., he observed appellant and
Michael Taylor (“Taylor”):
[O]n numerous occasions meet up with individuals.
They would either go to, on this picture, you see the
pay phone right there, the back of that pay phone
there is like a little opening slot, they would reach
into here, remove an object, reach into it, remove
items out of that object, that back in there, hand
over the item for United States currency.
And other times they would go to the Chinese
store. If you look at the picture, the window on your
far left, you see the white trash can right there, they
would reach into that white trash can, remove
something from it, come back out immediately . . .
and exchange.”
Id. at 37-38.
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Officer Clarke testified that he believed that he was seeing narcotics
transactions. (Id. at 39.) Officer Clarke reported that a rubber glove that
contained heroin was recovered from the pay phone and marijuana was
recovered from the trash can in the Chinese store. (Id. at 43-44.)
This evidence presented by the Commonwealth was sufficient to
establish that appellant committed PWID. The evidence established that he
participated in what a trained observer believed were drug transactions and
marijuana and heroin were recovered from the places that it appeared that
appellant was frequently returning.
As to the conspiracy conviction, appellant essentially raises the same
arguments.
Section 903 of the Crimes Code provides in pertinent 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:
(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.
(c) Conspiracy with multiple criminal
objectives.--If a person conspires to commit
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a number of crimes, he is guilty of only one
conspiracy so long as such multiple crimes are
the object of the same agreement or
continuous conspiratorial relationship.
18 Pa.C.S.A. § 903(a), (c).
The testimony used to support the conviction for PWID coupled with
the testimony of Officer Clarke, that he observed appellant and Taylor both
selling drugs at the same place at the same time and getting the drugs from
the same places, the pay phone and the trash receptacle in the Chinese
store, support the conspiracy charge. (Notes of testimony, 12/4/14 at 37.)
Officer Richard Gramlich of the Philadelphia Police Department corroborated
that Taylor was selling drugs at the same location. (Id. at 101.) This
evidence was sufficient to support the conviction for conspiracy. Once again,
appellant primarily challenges the credibility of the witnesses.
Appellant next contends that his sentence was excessive and the trial
court did not take into account the non-violent nature of his crimes and his
rehabilitative needs as set forth in his pre-sentence investigation report.
Appellant further asserts that the trial court failed to let him adequately
speak at the sentencing hearing.2
2
Appellant has not actually asserted that his right to allocution was denied.
In the argument section of his brief where he argues that the trial court
abused its discretion when it failed to consider mitigating factors when it
fashioned his sentence, he includes a sentence where he states that the trial
court failed to let him adequately speak and interrupted him almost
immediately. A review of both appellant’s Rule 1925(b) statement and his
statement pursuant to Pa.R.A.P. 2119(f) reveals that he did not raise the
right of a denial of allocution as an issue. Further, a review of the transcript
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[T]he proper standard of review when considering
whether to affirm the sentencing court’s
determination is an abuse of discretion. . . . [A]n
abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not have
abused its discretion unless the record discloses that
the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice,
bias or ill-will. In more expansive terms, our Court
recently offered: An abuse of discretion may not be
found merely because an appellate court might have
reached a different conclusion, but requires a result
of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so
as to be clearly erroneous.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate
review is that the sentencing court is in the best
position to determine the proper penalty for a
particular offense based upon an evaluation of the
individual circumstances before it.
Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)
(citation omitted).
Challenges to the discretionary aspects of sentencing
do not entitle an appellant to review as of right.
Commonwealth v. Sierra, [752 A.2d 910, 912
(Pa.Super. 2000)]. An appellant challenging the
discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to
determine: (1) whether appellant has
filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at
of the sentencing hearing indicates that after appellant stated that he
accepted responsibility for his actions, the trial court provided appellant with
a detailed explanation of the reasons for its sentencing decision.
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sentencing or in a motion to reconsider
and modify sentence, see Pa.R.Crim.P.
[720]; (3) whether appellant’s brief has
a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial
question that the sentence appealed
from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A.
§ 9781(b).
Moury, 992 A.2d at 170 (citation omitted).
Here, we begin our analysis by determining whether appellant has
complied with the procedural requirements of challenging the discretionary
aspects of his sentence. First, appellant timely filed his notice of appeal
pursuant to Pa.R.A.P. 902 and 903. Second, a review of the record reveals
that appellant raised, at both his sentencing hearing and in his motion for
reconsideration, the issues of whether the trial court should impose leniency
because the crime was non-violent and because he had to support his
family. Third, appellant’s brief includes a concise statement of the reasons
relied upon for allowance of appeal with respect to the discretionary aspects
of his sentence in conformance with Pa.R.A.P. 2119(f). Accordingly, we
must determine whether appellant has raised a substantial question.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Griffin, 65 A.3d
932, 935 (Pa.Super. 2013), appeal denied, 76 A.3d 538 (Pa. 2013)
(citation omitted). “A substantial question exists only when the appellant
advances a colorable argument that the sentencing judge’s actions were
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either: (1) inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the sentencing
process.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.Super. 2012),
appeal denied, 63 A.3d 774 (Pa. 2013) (citation omitted).
Here, the trial court imposed a standard range sentence after hearing
testimony at the sentencing hearing, reviewing the record, and reviewing
the pre-sentence investigation report. “[W]here a sentence is within the
standard range of the guidelines, Pennsylvania law views the sentence as
appropriate under the Sentencing Code.” Moury, 992 A.2d at 171. Further,
this court has held that a sentencing court failed to attach sufficient weight
to mitigating factors does not raise a substantial question. See
Commonwealth v. Lopez, 627 A.2d 1229 (Pa.Super. 1993) (allegation that
sentencing court failed to attach sufficient weight to mitigating factors of
record does not present a substantial question); see also Commonwealth
v. Jones, 613 A.2d 587 (Pa.Super. 1992), appeal denied, 629 A.2d 1377
(Pa. 1993) (arguments that sentencing court improperly weighed various
legitimate factors does not raise a substantial question). “[W]here the
sentencing judge had the benefit of a [PSI] report, it will be presumed that
he or she was aware of the relevant information regarding the defendant’s
character and weighed those considerations along with mitigating statutory
factors.” Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa.Super.
2013), appeal denied, 85 A.3d 481 (Pa. 2014), quoting Commonwealth
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v. Bricker, 41 A.3d 872, 876 n.9 (Pa.Super. 2012) (quotation and quotation
marks omitted). Therefore, appellant does not raise a substantial question
with respect to whether the trial court adequately considered mitigating
factors when it imposed a standard range sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/16/2017
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