Opinion
J-S39014-16 No. 1491 MDA 2015
11-22-2016
COMMONWEALTH OF PENNSYLVANIA, Appellee v. GABRIEL DOMONIC LEE, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence September 11, 2013
In the Court of Common Pleas of Franklin County
Criminal Division at No: CP-28-CR-001914-2011 BEFORE: STABILE, PLATT, and STRASSBURGER,* JJ. MEMORANDUM BY STABILE, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Gabriel Domonic Lee, appeals from the September 11, 2013, judgment of sentence entered in the Court of Common Pleas of Franklin County ("trial court") following his conviction of unlawful delivery of a controlled substance. Appellant challenges the weight of the evidence and whether the trial court erred in dismissing an ineffective assistance of counsel claim. Upon review, we affirm.
35 Pa.C.S.A. § 780-113.
The trial court summarized the factual and procedural history as follows:
The following facts were established through testimony presented at [Appellant's] August 13, 2013 trial,
where he had Attorney Matthew Stewart as stand-by counsel. The Commonwealth first presented testimony from Dustin Lamir [("Lamir")]. On October 3, 2011, Lamir was working as a confidential informant for the Franklin County Drug Task Force. On that date, Lamir purchased cocaine from [Appellant]. He had known [Appellant] at least one week prior to the transaction. Lamir first met [Appellant] at a bar in Greencastle, where he lamented that he was new in town and did not know where he could "get anything." To this, [Appellant] replied that "[a]nytime you need something, give me a call." [Appellant] identified himself as "G," the name he went by on the street. Lamir then informed Detective Jason Taylor of his newly acquired source in preparation for a deal to be set up.
Lamir testified that he attempted to contact [Appellant] by phone and text message, but received no reply. Lamir then ran into [Appellant] again, and their business relationship took off from there. On October 3, 2011, Lamir called [Appellant] and requested "an eight ball of cocaine." The two men discussed the price of that commodity, which came out to $170.00. [Appellant] instructed Lamir to contact him when he was in the area.
Lamir met with Detective Taylor, where he was searched prior to the meeting with [Appellant]. Lamir testified that his pockets were pulled inside out, he took his shoes off and Detective Taylor shook them, and he was patted down. Detective Taylor then provided Lamir with $170.00. Lamir called [Appellant], who told him to meet at Papa John's located approximately 80-100 yards from [Appellant's] residence and within sight of that residence. While Lamir was waiting at Papa John's, he attempted to call [Appellant] at least three times but got no answer. [Appellant] and his friend Mike Zolla [("Zolla")] then approached the Papa John's. [Appellant] carried a dog with him. Lamir walked toward the two men and indicated that he had the money. Lamir testified that he pulled the money out and "[Appellant] spit the cocaine from his mouth and we made the exchange." The cocaine was in a small plastic bag. After [Appellant] handed the cocaine to Lamir, the three men proceeded to walk across the street towards the Papa John's. Lamir stated that the transaction took approximately two minutes. After this encounter, [Appellant] and Zolla walked up an alley next to the pizza shop. Lamir returned to Detective Taylor's vehicle, where he turned over the cocaine purchased from [Appellant].
The Commonwealth next presented testimony from Officer Bryan Chappell of the Waynesboro Police Department. Officer Chappell has worked in law enforcement for thirteen years. In October of 2011, Officer Chappell was working as a detective with the
Franklin County Drug Task Force. During his time there, he conducted approximately 50 drug investigations. On October 3, 2011, Officer Chappell assisted with the controlled drug buy in this case, setting up surveillance in a large SUV on South Carlisle Street.
Officer Chappell watched Lamir walk south on S. Carlisle Street. He testified that he saw a golden car parked North on S. Carlisle Street against the curb. Out of the car emerged [Appellant] and a second male, who was identified as [] Zolla. Officer Chappell watched Lamir as he met with [Appellant] and Zolla. [Appellant] had a dog in his hand. [Appellant] then went into his residence while Zolla remained outside with Lamir. Officer Chappell was approximately a block and a half away from the meeting, taking photographs with his camera. He did not witness a "hand-to-hand" transaction between [Appellant] and Lamir. Officer Chappell stated he was 100 percent positive that he saw [Appellant] meet with Lamir on October 3, 2011 for the transaction.
The Commonwealth then presented testimony from Detective Jason Taylor, an investigator with the Franklin County Drug Task Force. Detective Taylor has worked in law enforcement for sixteen years, including over 1,000 drug investigations. He briefly described the role confidential informants play in drug investigations, explaining that they are involved in over 90 percent of those investigations. Throughout his career, Detective Taylor has been involved with approximately 100 confidential informants. He stated that Lamir became an informant in the summer of 2008 or 2009.
Detective Taylor stated that the Task Force arranged a controlled cocaine purchase on October 3, 2011. Detective Taylor previously told Lamir to contact [Appellant] and arrange the transaction. The purchase was set for around 3:30 p.m. Upon meeting Lamir, Detective Taylor searched him for money or contraband, after which he provided Lamir with the $170.00 purchase money. The transaction was to take place in the area near the Papa John's on S. Carlisle Street, which was near [Appellant's] residence. Lamir was equipped with a wire under his clothing. Detective Taylor drove Lamir to the location and watched him walk south down the street to meet [Appellant]. He stated that the location was a little more than half a block from [Appellant's] residence, which was in sight of the Papa John's. Detective Taylor was two blocks down the street from the transaction.
After the drug buy, Lamir returned to Detective Taylor's vehicle and turned over the cocaine. Lamir stated that he purchased the drugs from [Appellant]. Detective Taylor searched Lamir again and found no money or
contraband on his person, other than the drugs that [Appellant] gave him. The substance purchased was in a small plastic bag, in a white powdery form, which was later confirmed to be cocaine. Detective Taylor was later recalled to testify by [Appellant], where he focused on the Task Force's procedure regarding the money used in controlled drug buys, and for weighing the drugs recovered. Detective Taylor testified that, based on his experience in drug investigations, he believed that [Appellant] did have the ability to hold a bag of cocaine in his mouth while he spoke to an informant.
The [trial c]ourt also heard testimony from [Appellant]. [Appellant] stated that on October 3, 2011, he left his cell phone in Hagerstown, Maryland. [Appellant] presented conflicting testimony regarding his trip to Hagerstown. [FN4] He testified that upon his return from Hagerstown, he found his friend [] Zolla standing outside his residence. He stated that he was unaware that Lamir was on his way to meet him, and denied speaking to him that day. When he went inside his home, his fiancée asked him to take their dog out. [Appellant] stated that when he came out of his house, he saw Lamir and Zolla talking, but "thought nothing of it" because the two gentlemen were friends. [Appellant] stated that if Lamir had purchased drugs, it wasn't from him but from Zolla. [Appellant] maintained that it was not his phone that Lamir called, and that he never sold Lamir any drugs. [FN4. For example, on cross-examination, [Appellant] stated that he and Zolla went to Hagerstown together to visit his family. [Appellant] then stated that Zolla knew people in Hagerstown. He later stated that someone dropped him and Zolla off at [Appellant's] residence after going to Hagerstown.]
At the conclusion of the trial, the [trial c]ourt placed its findings on the record, ruling that he Commonwealth had proven beyond a reasonable doubt that [Appellant] did deliver a scheduled II controlled substance, cocaine, to another person, the confidential informant.
By [o]rder dated September 11, 2013, th[e trial c]ourt appointed Bret Beynon, Esq. as counsel for post-sentence and appeal matters and terminated the appointment of Attorney [Matthew] Stewart, Esq. as stand-by counsel. Following a March 25, 2014 status conference, th[e trial c]ourt issued a March 26, 2014 [o]rder that provided for the reinstatement of [Appellant's] direct appeal rights due to Attorney Beynon's admission that she did not file a timely post-sentence motion or appeal on her client's behalf. The March 26, 2014 [o]rder allowed the Commonwealth to object to the reinstatement within 10 days of the date of the [or]der before the rights would be reinstated. On April 10, 2014, after receiving no
objections from the Commonwealth, the [trial c]ourt reinstated [Appellant's] direct appeal rights but did not reinstate his right to file post-sentence motions. The April 10, 2014 [order] also granted Attorney Beynon's March 25, 2014[] [m]otion to [w]ithdraw as [c]ounsel and ordered that E. Edward Qaqish was to be appointed as appellate counsel.Trial Court Opinion, 8/13/2015, at 1- 6 (internal citations and footnotes omitted).
On April 28, 2014, [Appellant] filed a [n]otice of [a]ppeal, where he challenged th[e trial c]ourt's finding of guilt as he claimed the finding was against the weight of the evidence. On October 22, 2014, the Superior Court issued an [o]pinion affirming th[e trial c]ourt as [Appellant] did not preserve the issue by filing a post-sentence motion.
On February 26, 2015, [Appellant] filed a PCRA [p]etition and on March 3, 2015 th[e trial c]ourt appointed Krist[i]n Nicklas, Esq., as PCRA [c]ounsel. On June 8, 2015, the Commonwealth and [Appellant] stipulated that [Appellant's] right to file a post-sentence [motion] should be restored and must be done within ten days of June 8, 2015. The [trial c]ourt entered an Order on June 8, 2015 reflecting the stipulation.
[A] post-sentence motion was filed on June 17, 2015 and a hearing was held on July 30, 2015. The post-sentence motion raises three claims for relief: (1) th[e trial c]ourt's finding of guilt was against the weight of the evidence; (2) [Appellant's] waiver of his preliminary hearing was not done knowingly and voluntarily; and (3) ineffective assistance of trial court counsel.
Subsequently, the trial court denied Appellant's post-sentence motion by order dated August 13, 2015. Appellant filed a timely notice of appeal on August 31, 2015. On September 2, 2015, the trial court issued an order directing a concise statement of errors complained of on appeal. Appellant filed his concise statement on September 21, 2015.
This order was filed of record on August 17, 2015.
On appeal, Appellant raises two issues, which we cite here verbatim.
I. Did the trial court err in dismissing [Appellant's] post-sentence motion challenging the weight of the evidence to sustain his conviction where the Commonwealth failed to prove that [Appellant] committed the crimes charged?Appellant's Brief at 4.
II. Did the trial court err in dismissing [Appellant's] post-sentence motion alleging ineffective assistance of counsel when counsel gave [Appellant] erroneous advice?
Appellant's first argument is a challenge to the weight of the evidence. This Court's standard for reviewing a challenge to the weight of the evidence is well established.
The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. An appellate court cannot substitute its judgment for the finder of fact. Thus we may reverse the lower court's verdict if it is so contrary to the evidence as to shock one's sense of justice.Commonwealth v. Serrano , 61 A.3d 279, 289 (Pa. Super. 2013) (quoting Commonwealth v. Champney , 832 A.2d 403, 408 (Pa. 2003)). "[A] trial court's denial of a post-sentence motion 'based on a weight of the evidence claim is the least assailable of its rulings.'" Commonwealth v. Sanders , 42 A.3d 325, 331 (Pa. Super. 2012) (quoting Commonwealth v. Diggs , 949 A.2d 873, 880 (Pa. 2008)).
Moreover, where the trial court has ruled on the weight claim below, an appellate court's role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the claim.
Upon review of the record, Appellant's brief, and the trial court opinion, we conclude the trial court's opinion, authored by Judge Shawn D. Meyers, adequately addresses the weight of the evidence issue. The trial court found the testimony of Dustin Lamir, Officer Bryan Chappell, and Detective Taylor credible and noted inconsistencies in the testimony of Appellant. Therefore, the trial court did not abuse its discretion when it denied Appellant's weight of the evidence claim.
Next, Appellant asserts that his conviction was the result of ineffectiveness of counsel, Attorney Matthew Stewart because counsel failed to properly advise Appellant of the possible range of sentences he could face. Specifically, Appellant asserts that Attorney Stewart did not notify Appellant of the maximum range he could be facing or the aggregate range of sentencing. Upon review of the record, we conclude the trial court should not have addressed this issue.
The "general rule of deferral to PCRA review remains the pertinent law on the appropriate timing of review of claims of ineffective assistance of counsel." Commonwealth v. Holmes , 79 A.3d 562, 563 (Pa. 2013). In Holmes , our Supreme Court noted only two exceptions to this general rule. The first exception is where "there may be an extraordinary case where the trial court, in the exercise of its discretion, determines that a claim (or claims) of ineffectiveness if both meritorious and apparent from the record so that immediate consideration or relief is warranted." Id. at 577. The second exception provides that trial courts have discretion, upon good cause shown, if there are multiple or prolix claims of counsel ineffectiveness, and the defendant expressly waives PCRA review. See id. at 563-64.
In the matter sub judice, the trial court did not grant relief and there is nothing in the record indicating that Appellant expressly waived PCRA review. Thus, the trial court did not have jurisdiction to consider Appellant's ineffective assistance of counsel claims. See Commonwealth v. Harris , 114 A.3d 1, 6 (Pa. Super. 2015). This Court "may sua sponte consider whether we have jurisdiction to consider the merits of the claim presented." Id. (citation omitted). As the trial court did not have jurisdiction to consider the merits of Appellant's ineffectiveness claims, this Court does not have jurisdiction to consider the appeal of these claims. See id.
In conclusion, we find that the trial court did not abuse its discretion when it denied Appellant's weight of the evidence challenge. Therefore, we affirm the judgment of sentence. We direct that a copy of the trial court's August 13, 2015 opinion be attached to any future filings in this case.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/22/2016
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