Opinion
J-S16024-16 No. 605 EDA 2013
03-29-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. JOHN INGRAM Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence January 24, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001592-2011 BEFORE: OTT, J., DUBOW, J., and JENKINS, J. MEMORANDUM BY OTT, J.:
John Ingram appeals from the judgment of sentence imposed on January 24, 2013. The trial court found Ingram guilty of possession of a controlled substance, possession with intent to deliver a controlled substance (PWID), and conspiracy. Ingram was sentenced to serve a mandatory minimum sentence of three to six years' incarceration, pursuant to 18 Pa.C.S. § 7508, and three years' probation. In this appeal, Ingram presents three issues, namely, the sufficiency of the evidence, the weight of the evidence, and the legality of his sentence. Based upon the following, we find merit solely in the sentencing challenge and, therefore, we vacate the judgment of sentence and remand for resentencing.
We note the unexplained delay in this case, as follows: Ingram filed a timely notice of appeal on February 25, 2013. On June 5, 2013, the trial court issued a Pa.R.A.P. 1925(b) order, directing Ingram to file a concise statement of errors complained of on appeal. Ingram filed the concise statement on July 28, 2014. The trial court filed its opinion on February 23, 2015. The trial court's record and opinion were received in this Court on February 25, 2015.
35 P.S. § 780-113(a)(16), (a)(30), and 18 Pa.C.S. § 903, respectively.
As the parties are well acquainted with the facts and procedural history of this case, which are fully set forth in the trial court's opinion, we do not restate them. See Trial Court Opinion, 2/23/2015, at 1-5.
The first issue presented by Ingram is a challenge to the sufficiency of the evidence. "A claim challenging the sufficiency of the evidence is a question of law." Commonwealth v. Widmer , 744 A.2d 745, 751 (Pa. 2000).
We note the Commonwealth's argument that Ingram's sufficiency challenge is waived for failure to specify in his Pa.R.A.P. 1925(b) statement the elements for which the evidence was insufficient. See Commonwealth Brief at 7, citing Commonwealth v . Williams , 959 A.2d 1252, 1257-1258 (Pa. Super. 2008). Ingram's concise statement stated: "The evidence submitted at trial was insufficient to convict [Ingram] of Possession with Intent to Distribute, Conspiracy and Intentional Possession of a Controlled Substance." Ingram's Rule 1925(b) Statement, at ¶5. However, we decline to find waiver and will review Ingram's sufficiency issue. See Commonwealth v. Laboy , 936 A.2d 1058, 1060 (Pa. 2007) (declining to find waiver for alleged failure of Rule 1925(b) statement to adequately develop sufficiency of evidence claim where matter was "relatively straightforward drug case," evidentiary presentation spanned "mere thirty pages of transcript," and trial "court readily apprehended [defendant's] claim and addressed it in substantial detail").
The standard we apply in reviewing the sufficiency of 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 its judgment for that of the fact-finder. 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. The entire record must be evaluated and all evidence actually received must be considered. The trier 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. Ratsamy , 934 A.2d 1235-36, 1237 (Pa. 2007) (citations and quotation marks omitted).
Based on our review of the record, the arguments presented by Ingram, and the relevant case law and statutes, we conclude Ingram's sufficiency challenge warrants no relief. Furthermore, as the trial court has thoroughly addressed this issue in its opinion, we adopt the trial court's discussion as dispositive of Ingram's sufficiency claim. See Trial Court Opinion, 2/27/2015, at 6-11. Accordingly, no relief is due.
The second issue raised by Ingram is a challenge to the weight of the evidence. The Commonwealth takes the position this issue is waived, and we find this position to be correct. Our review confirms that Ingram has waived this claim by failing to raise it in a post-sentence motion, or by a written or oral motion prior to sentencing, as required by Pa.R.Crim.P. 607(A). Furthermore, the fact that the trial court addressed this claim in its Pa.R.A.P. 1925(a) opinion does not overcome waiver. See Commonwealth v. Thompson , 93 A.3d 478, 490-491 (Pa. Super. 2014). Accordingly, we deem Ingram's weight claim waived.
Rule 607 provides, in pertinent part:
Rule 607. Challenges to the Weight of the Evidence
(A) A claim that the verdict was against the weight of the evidence shall be raised with the trial judge in a motion for a new trial:
Pa.R.Crim.P. 607(A) (emphasis supplied).(1) orally, on the record, at any time before sentencing;
(2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.
Finally, Ingram contends his sentence is unconstitutional, based upon Alleyne v. United States , 133 S.Ct. 2151 (2013). Here, on January 24, 2013, Ingram received a mandatory sentence of three to six years' incarceration pursuant to 18 Pa.C.S. § 7508 ("Drug trafficking sentencing and penalties."). See Trial Court Opinion, at 5 and n.14. He filed a timely notice of appeal on February 25, 2013. While this case was pending before this Court, the United States Supreme Court, on June 17, 2013, decided Alleyne , holding that "[a]ny fact that, by law, increases the penalty for a crime is an 'element' that must be submitted to the jury and found beyond a reasonable doubt." Alleyne , 133 S. Ct. at 2155.
Applying this mandate, this Court, in Commonwealth v. Newman , 99 A.3d 86 (Pa. Super. 2014) (en banc), concluded that Alleyne rendered the mandatory minimum sentencing provision at 42 Pa.C.S. § 9712.1 unconstitutional and found the unconstitutional provisions of section 9712.1 were not severable from the statute as a whole. The Newman Court also instructed that Alleyne applies to any criminal case still pending on direct appeal as of June 27, 2013, the date of the Alleyne decision. Newman , 99 A.3d at 90. In light of Alleyne and Newman , a panel of this Court, in Commonwealth v. Cardwell , 105 A.3d 748 (Pa. Super. 2014), appeal denied, 121 A.3d 494 (Pa. 2015), held section 7508 to be facially unconstitutional in its entirety. Cardwell , 105 A.3d at 754-755.
See also Commonwealth v. Hopkins , 117 A.3d 247 (Pa. 2015) (holding 18 Pa.C.S. § 6317 is unconstitutional and non-severable).
As Ingram's case was pending on direct review when Alleyne was decided, Alleyne is applicable. See Newman , supra. In this regard, the Commonwealth and the trial court have stated that they recognize Alleyne is applicable, and that the judgment of sentence must be vacated and remanded for resentencing.
See Commonwealth Brief at 8-9; Trial Court Opinion, 2/23/2015, at 12-14.
In sum, we find no merit in Ingram's sufficiency challenge, and find waiver with regard to his challenge to the weight of the evidence. However, as to Ingram's sentencing challenge, we grant relief in the form of a new sentencing hearing, based upon Alleyne.
Judgment of sentence vacated. Case remanded for resentencing. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/29/2016
In the event of future proceedings, the parties are directed to attach a copy of the trial court's February 23, 2015, opinion to this memorandum.
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