Opinion
J-S35041-16 No. 2214 EDA 2015
06-08-2016
COMMONWEALTH OF PENNSYLVANIA v. RASSON DRAYTON, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence August 4, 2011 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0008430-2010 BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E. and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
Rasson Drayton ("Drayton"), appeals from the judgment of sentence imposed after a jury found him guilty of possession with intent to deliver a controlled substance ("PWID"), possession of an instrument of crime ("PIC"), and criminal conspiracy. We affirm in part, and vacate and remand in part.
The trial court set forth the relevant factual and procedural history in its Opinion, which we incorporate herein by reference. See Trial Court Opinion, 11/18/15, at 1-4.
As an addendum, we observe that, concerning Drayton's PWID conviction, the sentencing court imposed a mandatory minimum sentence of five to ten years, pursuant to 42 Pa.C.S.A. § 9712.1 (sentences for certain drug offenses committed with firearms), based on the close proximity of the drugs found in the front bedroom to the firearms. See N.T., 8/4/11, at 5-6, 14.
On appeal, Drayton presents the following issues for our review:
1. Did the trial court err in denying [Drayton's] post-sentence [M]otion because [Drayton's] conviction is against the weight of the evidence in that [Drayton] was with another individual[,] who had a firearm[,] and [Drayton] then entered a house containing narcotics and firearms[,] and that other individual closed the door to th[e] house so that police could not enter?Brief for Appellant at 4.
2. Is [Drayton's] mandatory sentence unconstitutional and should the matter be remanded for resentencing?
Drayton first argues that his convictions are "against the weight of the evidence because [he] was never seen with any firearms, was not seen selling any narcotics, and multiple people had access to the house wherein [Drayton] was arrested." Id. at 8. Drayton's purported weight of the evidence claim challenges the jury's finding that he constructively possessed the contraband police discovered inside 946 N. Farson Street (hereinafter "the Property"). See id. at 11 (asserting that "[t]here is no evidence to suggest that [Drayton] was in constructive possession of any of the contraband that was recovered[,]" and he "had only a tangential connection to the house that was raided[,] wherein there were others with actual possession of firearms ....").
Drayton's claim challenges the sufficiency, not the weight, of the evidence. See, e.g., Commonwealth v . Vargas ,108 A.3d 858, 867-68 (Pa. Super. 2014) (en banc) (stating that a challenge to constructive possession of contraband implicates the sufficiency of the evidence); Commonwealth v. Hopkins ,67 A.3d 817, 820 (Pa. Super. 2013) (same). It is axiomatic that sufficiency and weight of the evidence are separate and distinct claims, as an argument that the jury's verdict was against the weight of the evidence concedes that the evidence was sufficient to sustain the convictions. Commonwealth v. Lyons ,79 A.3d 1053, 1067 (Pa. 2013); see also Commonwealth v. Widmer ,744 A.2d 745, 751-52 (Pa. 2000) (discussing the distinctions between challenges to the weight and sufficiency of the evidence); Commonwealth v. Charlton ,902 A.2d 554, 561 (Pa. Super. 2006) (explaining that a challenge to the weight of the evidence questions which evidence is to be believed). Despite Drayton's confusion, and his failure to raise a sufficiency challenge, by name, in his court-ordered Pa.R.A.P. 1925(b) Concise Statement, we decline to find waiver and will address his claim as a sufficiency challenge.
We observe that failure to recognize the distinction between the two separate claims may result in waiver. See , e.g., Commonwealth v. Sullivan ,864 A.2d 1246, 1248-49 (Pa. Super. 2004); Commonwealth v. Birdseye ,637 A.2d 1036, 1039-40 (Pa. Super. 1994).
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. ... 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. Melvin ,103 A.3d 1, 39-40 (Pa. Super. 2014) (citation omitted).
Constructive possession is "a legal fiction, a pragmatic construct to deal with the realities of criminal law enforcement. Constructive possession is an inference arising from a set of facts that possession of the contraband was more likely than not." Commonwealth v. Mudrick ,507 A.2d 1212, 1213 (Pa. 1986). Constructive possession entails the power to control the contraband and the intent to exercise that control. Commonwealth v. Macolino ,469 A.2d 132, 134 (Pa. 1983). "To find constructive possession, the power and intent to control the contraband does not need to be exclusive to the defendant." Vargas ,108 A.3d at 868. Constructive possession may be inferred from the totality of the circumstances using circumstantial evidence. Macolino ,469 A.2d at 134.
Here, the trial court set forth in its Opinion the relevant law concerning the offenses of which Drayton was convicted, and determined that the jury's verdict and finding of constructive possession was supported by overwhelming evidence. See Trial Court Opinion, 11/18/15, at 5-7. We incorporate the trial court's analysis herein, as it is supported by the record and the law. See id. We conclude that the evidence set forth in the trial court's Opinion, viewed in the light most favorable to the Commonwealth as verdict winner, was sufficient for the jury to find constructive possession; therefore, Drayton's first issue fails. See id.; see also Vargas ,108 A.3d at 869 (stating that "although 'mere presence' at a crime scene cannot alone sustain a conviction for possession of contraband[,] 'a jury need not ignore presence, proximity and association when presented in conjunction with other evidence of guilt.'") (citation omitted); Commonwealth v. Markovitch ,565 A.2d 468, 471 (Pa. Super. 1989) (holding that the totality of the circumstances established the defendant's constructive possession of cocaine and paraphernalia that police seized from a glass table in the basement of a house the defendant occupied where (1) an officer observed the defendant coming up the stairs to the basement; (2) the presence of the defendant's jacket at the glass table and other evidence tied her to the drug packaging operation; and (3) the police stopped the defendant as she was attempting to flee the house); Commonwealth v. Keefer ,487 A.2d 915, 918 (Pa. Super. 1985) (holding that that Western Union receipts bearing the defendant's name found in a bedroom were sufficient indicia of ownership to support an inference of constructive possession of drugs also found within the bedroom).
We overlook any reference by the trial court concerning the weight of the evidence, in light of our above discussion.
Next, Drayton argues that the mandatory sentence imposed on him under 42 Pa.C.S.A. § 9712.1 is illegal pursuant to Alleyne v. United States ,133 S. Ct. 2151 (2013), and its progeny. Brief for Appellant at 12-13; see also Alleyne ,133 S. Ct. at 2163 (holding that "facts that increase mandatory minimum sentences must be submitted to the jury" and must be found beyond a reasonable doubt. We agree.
Relevantly, 42 Pa.C.S.A. § 9712.1 provides that "[p]rovisions of this section shall not be an element of the crime[,]" and that in order for the five-year mandatory minimum sentence under subsection 9712.1(a) to apply, the court must determine at sentencing, by a preponderance of the evidence, that the requirements were met. Id. § 9712.1(c).
Drayton's claim implicates the legality of his sentence, and therefore, cannot be waived. See Commonwealth v. Newman ,99 A.3d 86, 90 (Pa. Super. 2014) (en banc) (stating that "a challenge to a sentence premised upon Alleyne [] implicates the legality of the sentence and cannot be waived on appeal.").
We note that the Pennsylvania Supreme Court, by accepting review of two of this Court's prior decisions, appears poised to address whether an Alleyne claim constitutes a non-waivable challenge to the legality of a sentence. See Commonwealth v. Wolfe ,106 A.3d 800 (Pa. Super. 2014), appeal granted ,121 A.3d 433 (Pa. 2015) (granting appeal to consider whether the Superior Court erred as a matter of law when it determined, sua sponte, that the defendant's mandatory minimum sentence was unconstitutional under Alleyne ); Commonwealth v. Barnes ,105 A.3d 47 (Pa. Super. 2014) (unpublished memorandum), appeal granted ,122 A.3d 1034 (Pa. 2015) (granting appeal to consider, inter alia, whether an Alleyne claim raises a challenge to the legality of sentencing). At this time, however, the holding of our en banc panel in Newman is binding precedent. Accordingly, we decline the Commonwealth's invitation in the instant case to withhold our ruling pending the Supreme Court's decisions on Wolfe and Barnes. See Brief for the Commonwealth at 9-10.
Drayton is correct that Alleyne rendered section 9712.1 constitutionally infirm in its entirety because the statute allows the sentencing court to determine, by only a preponderance of the evidence, whether the mandatory minimum applies. See Newman ,99 A.3d at 98; see also Commonwealth v. Watley ,81 A.3d 108, 112 n.2 (Pa. Super. 2013) (en banc); Commonwealth v . Munday ,78 A.3d 661, 666 (Pa. Super. 2013). Moreover, the trial court correctly recommended in its Opinion that Drayton's mandatory minimum sentence is illegal and that the case must be remanded for resentencing. See Trial Court Opinion, 11/18/15, at 8.
The mandatory minimum sentencing statute under which Drayton's sentences were imposed is unconstitutional in its entirety; accordingly, those sentences are illegal and must be vacated. Because our decision upsets the trial court's overall sentencing scheme, we vacate Drayton's judgment of sentence in its entirety, and remand for resentencing, without consideration of 42 Pa.C.S.A. § 9712.1. See Commonwealth v. Ferguson ,107 A.3d 206, 213-14, 216 (Pa. Super. 2015) (vacating entire sentence pursuant to Alleyne and remanding for resentencing on all counts, where the sentence encompassed both counts subject to mandatory minimum sentencing provisions and counts not subject to mandatory minimum sentencing provisions).
Drayton's convictions affirmed. Judgment of sentence vacated. Case remanded for resentencing. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/8/2016
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