Summary
holding that this Court may overlook a Rule 2119(f) violation if the Commonwealth fails to object
Summary of this case from Commonwealth v. BlauserOpinion
No. 706 MDA 2019
10-28-2020
COMMONWEALTH of Pennsylvania v. Charles William LYNCH, III Appellant
Drew F. Deyo, Mechanicsburg, for appellant. Matthew D. Fogal, District Attorney, Chambersburg, for Commonwealth, appellee.
Drew F. Deyo, Mechanicsburg, for appellant.
Matthew D. Fogal, District Attorney, Chambersburg, for Commonwealth, appellee.
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and STEVENS, P.J.E.
Former Justice specially assigned to the Superior Court.
OPINION BY McLAUGHLIN, J.: A jury found Charles William Lynch, III, guilty of Possession with Intent to Deliver ("PWID"), Corrupt Organizations, Dealing in Proceeds of Unlawful Activities, Criminal Use of a Communication Facility, conspiracy to commit PWID, and conspiracy to commit Corrupt Organizations. He has appealed from the judgment of sentence and raises several sentencing issues, makes two arguments against the admission of a recorded phone call, and challenges the sufficiency and weight of the evidence. We affirm.
35 P.S. § 780-113(a)(30) ; 18 Pa.C.S.A. §§ 911(b)(1) ; 5111(a)(1); 7512; and 903(a)(1), respectively.
The facts giving rise to Lynch's convictions are as follows. Lynch directed his girlfriend, Susan Hollabaugh, to sell heroin. N.T., Trial, 11/5/18, at 141, 142. Hollabaugh would travel to Philadelphia sometimes to meet with Lynch's drug connection for the heroin. Id. at 142-43. They would keep the heroin in a safe in the upstairs bedroom of their apartment. They eventually moved the safe to another house where Kevin and Kelly Paul resided. Id. at 144. Kevin Paul received money or heroin for stashing the safe at his home. Id. at 173. He would also buy heroin from Hollabaugh, sell it and then buy more heroin. Id. Hollabaugh would sometimes give Kevin Paul a phone in order to distribute the heroin. Id. at 173-74. Kelly Paul sold heroin one time to three people when Kevin Paul was unavailable. Id. at 182. Kelly Paul knew that once Kevin Paul would sell the heroin, he would give the cash back to Hollabaugh. Id. at 181. Lynch also started selling heroin to his cousin, Richard Danzberger, who would then resell the heroin. Id. at 123. Danzberger would buy about six bundles which amounted to $900. Id.
In December 2016, Franklin County Drug Task Force stopped Kevin Paul and Hollabaugh while they were traveling on the highway. N.T., 11/6/18, at 5-6. Members of the task force searched the vehicle and found over 900 bags of heroin. Id. at 6. Later on the day of the stop, officers searched the Pauls’ home and found two safes. Id. at 20. Inside the safes, officers found guns, money, and an "owe sheet." Id. at 21-22. This sheet kept track "of the number of bundles received"; "the individual person or party that's buying the drugs, the heroin"; and "the amount of cash that's owed." Id. at 23. The letters "K" and "R" were at the top of columns on the sheet, and the letter "B" was to the left of the columns. Id. (referencing Commonwealth's Exhibit 7). The "B" represented the number of bundles of heroin purchased, while the "K" and "R" signified the individuals who bought the heroin. Id. (referencing Commonwealth's Exhibit 7). The "R" column explicitly listed the name "Richie." Id. (referencing Commonwealth's Exhibit 7). The Commonwealth charged Lynch, Hollabaugh, Kevin Paul, Kelly Paul, and Danzberger with numerous offenses. Kevin Paul and Kelly Paul pleaded guilty to Corrupt Organizations, while Danzberger pleaded guilty to Corrupt Organizations and additional charges. N.T., 11/5/18, at 124-25, 174-75, 183. Lynch proceeded to a jury trial and the jury found him guilty of the above-referenced offenses. The trial court sentenced Lynch to an aggregate term of 201 to 960 months’ incarceration. Lynch filed a post-sentence motion challenging, among other things, his sentence and the weight of the evidence. The trial court denied the motion, and this timely appeal followed. Lynch raises the following issues:
1. Whether [Lynch] should be entitled to a modification of sentence because the trial court committed an abuse of discretion in sentencing [Lynch] to an excessive sentence outside of the Pennsylvania standard range sentencing guidelines without proper consideration of the Pennsylvania sentencing factors?
2. Whether, pursuant to 18 Pa.C.S.[A.] § 903(c), the trial court erred in sentencing [Lynch] to separate consecutive sentences on Count 2, Conspiracy to Possession with Intent to Deliver a Controlled Substance, and Count 4, Conspiracy to Corrupt Organizations, because both Counts amount to only one Conspiracy with multiple criminal objectives?
3. Whether [Lynch] should be entitled to a modification of sentence pursuant to 42 Pa.C.S.[A.] § 9765 because the trial court erred in failing to merge Possession with Intent to Deliver a Controlled Substance, Conspiracy to Possession with Intent to Deliver a Controlled Substance, and Dealing in Proceeds of Unlawful Activity with Corrupt Organizations?
4. Whether [Lynch] should be granted a new trial because the trial court erred in allowing the Commonwealth to present a recorded telephone call involving [Lynch], where the telephone call was not produced by the Commonwealth in discovery, [Lynch] requested the telephone call months in advance of trial, and without explanation, the Commonwealth did not provide the telephone call to [Lynch's] counsel until the eve of trial?
5. Whether the trial court erred in allowing the Commonwealth to present a recorded telephone call involving [Lynch] and his mother that was never disclosed to [Lynch] or his counsel in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ?
6. Whether the trial court should have granted [Lynch's] Post-Sentence Motion for acquittal because there was insufficient evidence presented at trial to prove beyond a reasonable doubt that [Lynch] was guilty of Conspiracy to Possession with Intent to Deliver a Controlled Substance, Corrupt Organizations, Conspiracy to Corrupt Organizations and Dealing in Proceeds of Unlawful Activity?
7. Whether [Lynch] should be granted a new trial because the jury's verdict finding [Lynch] guilty of Conspiracy to Possession with [I]ntent to Deliver a Controlled Substance, Corrupt Organizations, Conspiracy to Corrupt Organizations, and Dealing in Proceeds of Unlawful Activity was against the weight of the evidence?
Lynch's Br. at 10-11 (unnecessary capitalization omitted). Lynch's first three claims challenge the sentence imposed by the trial court. His first issue goes to the discretionary aspects of his sentence. Before entertaining such a claim, we must first determine whether Lynch has done four things: (1) filed a timely notice of appeal, see Pa.R.A.P. 902 and 903 ; (2) preserved the issue at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720 ; (3) included a Pa.R.A.P. 2119(f) statement in his brief; and (4) set forth a substantial question that his sentence is not appropriate under the Sentencing Code. See Commonwealth v. Caldwell , 117 A.3d 763, 768 (Pa.Super. 2015).
Here, Lynch filed a timely notice of appeal and also preserved this issue in his post-sentence motion. However, he did not include a Rule 2119(f) statement in his brief. This omission would result in waiver of his sentencing issues but for the Commonwealth's failure to object. We therefore proceed to determine if he has raised a substantial question. See Commonwealth v. Kiesel , 854 A.2d 530, 533 (Pa.Super. 2004).
A substantial question exists when the appellant makes a colorable argument that the sentencing judge's actions were either inconsistent with a specific provision of the Sentencing Code or contrary to the fundamental norms underlying the sentencing process. Commonwealth v. Moury , 992 A.2d 162, 170 (Pa.Super. 2010). Lynch first maintains that the trial court imposed an excessive sentence that exceeded the Sentencing Guidelines without considering the sentencing factors. See Lynch's Br. at 16. This does not raise a substantial question. See Commonwealth v. Coolbaugh , 770 A.2d 788, 792 (Pa.Super. 2001).
He also argues that the court erroneously considered his criminal past, which he states is something already included in his prior record score. See Lynch's Br. at 29. Lynch did not raise this claim before the trial court, either in his post-sentence motion or at sentencing. It is therefore waived. See Pa.R.A.P. 302(a). He further claims that the "[t]rial [c]ourt erred by focusing on the seriousness of [Lynch's] crimes, because they too were already accounted for in computing the offensive gravity score of each offense." See Lynch's Br. at 29. This claim is also waived because Lynch did not raise this claim below. See Pa.R.A.P. 302(a).
In any event, Lynch's discretionary sentencing challenges fail on the merits. We review challenges to discretionary aspects of sentencing for abuse of discretion. Commonwealth v. Edwards , 194 A.3d 625, 637 (Pa.Super. 2018), appeal denied , 651 Pa. 8, 202 A.3d 41 (2019).
The trial court imposed sentences above the Sentencing Guidelines for the PWID and Corrupt Organizations convictions. See Trial Ct. Op., filed 6/11/19, at 7-8. Before pronouncing sentence, the trial court acknowledged that it was required to impose a sentence "that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and the community, and the rehabilitative needs of [Lynch]." N.T., Sentencing, 12/12/18, at 16. It also considered Lynch's Pre-Sentence Investigation ("PSI") report. Id. at 15.
The trial court then stated that it did not "find the standard range on a number of these offenses to be appropriate." Id. at 19. It then went on to explain its conclusion that a sentence above the Sentencing Guidelines was necessary.
Based on your extended history of doing this type of thing, based upon the evidence presented at trial, based upon the considerations that the [c]ourt is required
by law to consider in imposing a sentence we don't find the standard range on a number of these offenses to be appropriate.
We find that the sentence we impose here today in order to adequately protect the public and vindicate the harm you've caused to the community by dealing in heroin and, we note, heroin laced with Fentanyl[.]
Id.
Having considered Lynch's PSI, as well as his criminal history and the impact of the crimes for which he was convicted, the trial court stated that the sentences imposed were not excessive but instead were consistent with its "duty to protect the public, recognize the harm done to the community, and provide for [Lynch's] rehabilitation." Trial Ct. Op. at 10. Lynch's claim that the court sentenced him above the Sentencing Guidelines without considering the appropriate factors thus fails. Lynch's additional claim that the court improperly double-counted his criminal past also fails, as the court appropriately took that into consideration when determining Lynch's amenability to rehabilitation.
Next, Lynch claims that the trial court erred in sentencing him to two separate counts of conspiracy rather than one count. He maintains that he only participated in one conspiracy, which was for the Corrupt Organizations conviction. Lynch's Br. at 38.
The conspiracy statute provides, "If a person conspires to commit 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(c). To determine whether this provision bars a conviction for more than one conspiracy we consider:
the number of overt acts in common; the overlap of personnel; the time period during which the alleged acts took place; the similarity in methods of operation; the locations in which the alleged acts took place; the extent to which the purported conspiracies share a common objective; and the degree to which interdependence is needed for the overall operation to succeed.
Commonwealth v. Koehler , 558 Pa. 334, 737 A.2d 225, 245 (1999) (citation omitted).
Whether Section 903(c) bars multiple convictions for conspiracy is a question of the sufficiency of the evidence. See id. & n.33 (applying sufficiency standard of review to reject a Section 903(c) challenge). We therefore examine the evidence at trial in the light most favorable to the Commonwealth, as verdict-winner, and ask, when so considered, if it proved each element beyond a reasonable doubt. Id. at 245 n.33.
The evidence here was sufficient to prove two conspiracies. The Corrupt Organizations conviction was for three subsections of the offense, including subsections (b)(2) and (b)(3). Subsection (b)(2) prohibits the "acquir[ing] or maintain[ing], directly or indirectly, any interest in or control of any enterprise" "through a pattern of racketeering activity." 18 Pa.C.S.A. § 911(b)(2). Subsection (b)(3) bars "any person employed by or associated with any enterprise" from "conduct[ing] or participat[ing], directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity." 18 Pa.C.S.A. § 911(b)(3). The statute defines "racketeering activity" to include the conduct indictable as the offense of Dealing in Proceeds of Unlawful Activities. 18 Pa.C.S.A. § 911(h)(1)(i). That offense includes the "conduct[ing of] a financial transaction" "with knowledge that the property involved, including stolen or illegally obtained property, represents the proceeds of unlawful activity," "with the intent to promote the carrying on of the unlawful activity." 18 Pa.C.S.A. § 5111(a)(1). A "financial transaction" for purposes of this offense is, among other things, "any exchange of stolen or illegally obtained property for financial compensation or personal gain." 18 Pa.C.S.A. § 5111(f).
The evidence, viewed in the Commonwealth's favor, as verdict-winner, was sufficient to establish both a conspiracy to commit PWID and, at the least, a conspiracy to commit Corrupt Organizations by engaging in the "exchange of stolen or illegally obtained property for financial compensation or personal gain." The evidence established that Lynch initially began selling heroin by having Hollabaugh travel to Philadelphia to purchase heroin that Lynch would then sell. Over time, Lynch began selling to the Pauls, who would resell the heroin. That constituted a conspiracy to commit PWID.
At that point a separate conspiracy to "exchange...stolen or illegally obtained property for financial compensation or personal gain" developed, with all parties involved, as evidenced by the "owe sheet." As the trial court concluded "[t]he jury could have reasonably concluded that an agreement to possess heroin with the intent to deliver was a goal they all shared, but was not dependent upon an agreement to have an overall enterprise (Corrupt Organization)." Trial Ct. Op. at 12. This claim is meritless.
Lynch also claims that the trial court failed to merge the PWID and conspiracy-PWID, and Dealing with Proceeds of Unlawful Activity convictions with Corrupt Organizations. Lynch's Br. at 39. Lynch alleges that "because all of the elements" of PWID, conspiracy-PWID, and Dealing with Proceeds of Unlawful Activity convictions "were found in the first element of Corrupt Organizations," the convictions should have merged. Id. at 41. This claim is meritless.
"A claim that crimes should have merged for sentencing purposes raises a challenge to the legality of the sentence." Commonwealth v. Cianci , 130 A.3d 780, 782 (Pa.Super. 2015) (citation omitted). Our standard of review is de novo and our scope is plenary. Merger is appropriate where "crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense." 42 Pa.C.S.A. § 9765.
Merger here was not appropriate. All of the statutory elements of PWID, Conspiracy, and Dealing with Proceeds of Unlawful Activity are not included as statutory elements of Corrupt Organizations. See 35 P.S. § 780-113(a)(30) ; 18 Pa.C.S.A. §§ 903(a)(1), 911(b)(1), and 5111(a)(1). Despite Lynch's claim that "all three predicate offenses were listed under the first element of Corrupt Organizations in the Jury Instructions," this does not change our conclusion because we look to the elements of the crimes to determine whether they merge, not the jury instructions. Lynch's Br. at 41.
The crime of Corrupt Organizations is defined as:
(b) Prohibited activities. --
(1) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity in which such person participated as a principal, to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in the acquisition of any interest in, or the establishment or operation of, any enterprise: Provided, however, That a purchase of securities on the open market for purposes of investment, and
without the intention of controlling or participating in the control of the issuer, or of assisting another to do so, shall not be unlawful under this subsection if the securities of the issue held by the purchaser, the members of his immediate family, and his or their accomplices in any pattern of racketeering activity after such purchase, do not amount in the aggregate to 1% of the outstanding securities of any one class, and do not confer, either in law or in fact, the power to elect one or more directors of the issuer: Provided, further, That if, in any proceeding involving an alleged investment in violation of this subsection, it is established that over half of the defendant's aggregate income for a period of two or more years immediately preceding such investment was derived from a pattern of racketeering activity, a rebuttable presumption shall arise that such investment included income derived from such pattern of racketeering activity.
(2) It shall be unlawful for any person through a pattern of racketeering activity to acquire or maintain, directly or indirectly, any interest in or control of any enterprise.
(3) It shall be unlawful for any person employed by or associated with any enterprise to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity.
(4) It shall be unlawful for any person to conspire to violate any of the provisions of paragraphs (1), (2) or (3) of this subsection.
18 Pa.C.S.A. § 911(b). Dealing with Proceeds of Unlawful Activity is defined as:
(a) Offense defined.-- A person commits a felony of the first degree if the person conducts a financial transaction under any of the following circumstances:
(1) With knowledge that the property involved, including stolen or illegally obtained property, represents the proceeds of unlawful activity, the person acts with the intent to promote the carrying on of the unlawful activity.
(2) With knowledge that the property involved, including stolen or illegally obtained property, represents the proceeds of unlawful activity and that the transaction is designed in whole or in part to conceal or disguise the nature, location, source, ownership or control of the proceeds of unlawful activity.
(3) To avoid a transaction reporting requirement under State or Federal law.
Conspiracy occurs where "with the intent of promoting or facilitating its commission [a person]:"
(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.
The crime of PWID occurs where there is "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." 75 Pa.C.S.A. § 780-113(a)(30).
It is clear from the above elements of each crime that merger was not appropriate here. "[A]ll of the statutory elements of one offense" are not included in the statutory elements of the other offenses. 42 Pa.C.S.A. § 9765. For example, the element of "any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity in which such person participated as a principal, to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in the acquisition of any interest in, or the establishment or operation of, any enterprise" of Corrupt Organizations is not included as an element for the charge of Dealing in Proceeds of Unlawful Activities. The trial court did not commit error.
Next, Lynch claims that the trial court committed an evidentiary error by allowing the Commonwealth to play a recorded prison telephone call between Lynch and Hollabaugh. See Lynch's Br. at 44. He alleges that the Commonwealth failed to turn over the call until four days before trial and did not explain why it waited a year to turn it over. Id. at 45, 47. He maintains that because he allegedly did not have a fair opportunity to review the recording and prepare for trial, we should grant a new trial. Id. at 47.
We review the admission of evidence for an abuse of discretion. Commonwealth v. Baker , 963 A.2d 495, 503-04 (Pa.Super. 2008). An abuse of discretion is present where there is an "overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record." Commonwealth v. Santos , 176 A.3d 877, 882 (Pa.Super. 2017) (citation omitted).
"Rule 573(B)(1)(g) [of the Pennsylvania Rules of Criminal Procedure] ... mandates that the Commonwealth disclose the transcripts and recordings of any electronic surveillance, as well as the authority by which said transcripts and recordings were obtained." Commonwealth v. McNeil , 808 A.2d 950, 956 (Pa.Super. 2002). Rule 573 governs pretrial discovery and the purpose of it is to prevent "trial by ambush." Commonwealth v. Ulen , 539 Pa. 51, 650 A.2d 416, 419 (1994) (discussing prior version of Rule 573).
This was not a trial by ambush. Lynch fails to specify how his trial strategy allegedly would have changed, and nothing is apparent to us. Lynch knew early on that the Commonwealth had the recording, and Lynch, as a participant on the call, knew what was said. We cannot say the trial court abused its discretion.
Lynch also challenges the admission of a recording of a prison call between him and his mother. He alleges that the prosecution's failure to turn over the record violated Brady and the trial court should not have admitted it into evidence. Lynch's Br. at 48. He also argues that the admission of the call was prejudicial because the beginning of the recording stated "that it was being recorded by the Franklin County Jail - wrongly allowing the Jury to infer that [Lynch] was incarcerated." Id. at 49. He also alleges that "the telephone call had no evidentiary value whatsoever and was not relevant." Id.
A defendant claiming a Brady violation must plead and prove: "the prosecution suppressed the evidence, either willfully or inadvertently; the evidence is favorable to the defense; and the evidence is material." Commonwealth v. Birdsong , 611 Pa. 203, 24 A.3d 319, 327 (2011).
Here, the transcript does not contain a transcription of the call. Additionally, the transcript fails to show what portion of the recording was actually played at trial. As such, our review of this claim is limited. The Commonwealth admitted the recording during its cross-examination of Lynch, and the portion of the transcript regarding the recording is as follows:
Q [Commonwealth]: But [Hollabaugh] was credible correct?
A [Lynch]: What do you mean by that?
Q: What she said hurt you?
A: Hurt me?
Q: Hurt your case?
A: I don't think it did.
Q: So you weren't on the phone with your mom last night?
A: I was.
Q: Okay. Let's listen to it.
[Commonwealth]: Your Honor, I have a disk of Mr. Lynch's phone call last night, Exhibit No. 21. I'll be playing some clips of that.
[Defense Counsel]: Your Honor, sidebar if I may very brief.
(Thereupon, a discussion was held on the record at sidebar.)
[Defense Counsel]: I was never aware of this phone call. I was not – it was never disclosed until just now, so I haven't had a chance to look at it. I have no idea what we're about to hear.
THE COURT: Right. It wouldn't be admissible if your client didn't testify.
[Defense Counsel]: Right, but he could have still provided it this morning. You knew my client was going to testify.
THE COURT: What obligation did he have to do that? Do you have an objection?
[Defense Counsel]: Brady . It's exculpatory overruled [sic].
THE COURT: Overruled
(Thereupon, the following occurred in open court.)
[Commonwealth]: There are a couple of clips I want you to listen to, Mr. Lynch, and I want you to tell me what you mean. So your case was a slam dunk until Susan testified, so Susan sunk you?
A [Lynch]: Not necessarily. If you listen to the whole call I said it hurt and helped.
Q [Commonwealth]: Let's listen to that part.
A [Lynch]: Let's do it.
Q: Okay. How did it hurt, Mr. Lynch, because she was being truthful?
A: I mean –
Q: Truthful testimony hurts doesn't it?
A: Not really. She said that at one point I had told her to go do this, I mean –
Q: Okay, at one point –
A: Yes, that looks bad.
Q: So you did tell her at one point to go [to] Philadelphia and raise money?
A: I don't recall doing that ever, telling her to go to Philadelphia. I don't ever recall saying that to her.
Q: Then how would it hurt it she was lying?
A: Because she said it, so if she is lying about it that hurts me.
Q: Okay.
A: I even say on the phone call that I was surprised in the phone call that she had went to Philadelphia –
Q: Okay.
A: -- on her own.
Q: Okay. Let's listen to the last part of it.
[Defense Counsel]: I object at this point, Your Honor. I don't think any of this is relevant to the question that was asked. I don't know what they're talking about. I haven't had a chance to hear any of it. I don't think it's relevant.
[Commonwealth]: That's fine. We can move on.
THE COURT: Let's do that. The objection is sustained.
N.T., Trial, 11/6/18, at 126-129.
Lynch argues that the recording was prejudicial because the beginning of it mentioned that the call was being recorded by the Franklin County Jail, but the Commonwealth maintains that that portion of the call was not played. See Commonwealth's Br. at 19. However, the record is unclear as to which portion of the call was played and therefore he has waived this claim. Even assuming that the portion of the call that was played included that statement, Lynch did not object or ask for a curative instruction on that basis and therefore any claim against the portion that was played is doubly waived. As to Lynch's blanket statement that "the telephone call had no evidentiary value whatsoever and was not relevant," the record belies this claim. Lynch's Br. at 49. The call was relevant because it challenged Lynch's testimony that Hollabaugh's testimony did not "hurt [his] case." N.T., Trial, 11/6/18, at 126.
Lynch also claims that there was a Brady violation because the Commonwealth did not provide the recording to defense counsel and "nobody aside from the Commonwealth had a chance to listen to the recording." Lynch's Br. at 49. This claim fails because a Brady violation requires that the defendant prove that the evidence was material. However, Lynch himself states that the recording was irrelevant. Lynch has also failed to show that the recording was favorable to the defense. See Birdsong , 24 A.3d at 327. The trial court did not abuse its discretion in denying this claim.
Next, Lynch challenges the sufficiency of the evidence. For such a challenge our standard of review is as follows:
[O]ur standard of review of sufficiency claims requires that we evaluate the record in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. 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. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty. [T]he facts and circumstances established by the Commonwealth need not be absolutely incompatible with the defendant's innocence. Any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.
Commonwealth v. Franklin , 69 A.3d 719, 722 (Pa.Super. 2013) (citations, quotation marks, and parentheses omitted).
Lynch claims "there was insufficient evidence for the jury to conclude that [Lynch] entered into an agreement to satisfy the agreement element of Count II, Conspiracy to Possession with Intent to Deliver a Controlled Substance." Lynch's Br. at 52. He also argues that "[t]he Commonwealth failed to present sufficient evidence with respect to every element of the charge of Corrupt Organizations." Id. at 54. He claims as well that "[t]he Commonwealth failed to present sufficient evidence for the Jury to convict [Lynch] of Conspiracy to Corrupt Organizations because the Commonwealth failed to offer sufficient evidence that [Lynch] formed an agreement with another person to engage in the crime of Corrupt Organizations." Id. at 59. Finally, he argues that "[t]he Commonwealth failed to present sufficient evidence that [Lynch] conducted a financial transaction with proceeds that he knew were derived from unlawful activity, and failed to present sufficient evidence that [Lynch] conducted a financial transaction with the intent to promote the carrying on of an unlawful activity." Id. at 59-60.
The trial court aptly and thoroughly summarizes that each of Lynch's sufficiency claims are meritless based on the evidence presented at trial and the relevant case law. We agree with its conclusions and affirm on the basis of the trial court opinion that the evidence was sufficient to satisfy each conviction. See Trial Ct. Op. at 20-30.
Lynch also challenges the weight of the evidence. We review a challenge to the weight of the evidence for an abuse of discretion. See Commonwealth v. Widmer , 560 Pa. 308, 744 A.2d 745, 753 (2000). A defendant must present such a challenge to the trial court in the first instance, and if that court rejects the challenge, on appeal, we review its rejection of the claim for abuse of discretion. Id.
Lynch argues again that a conspiracy did not exist and calls to our attention portions of testimony that support his argument that "none of [Lynch's] alleged co-conspirators ever acknowledged reaching an agreement with [Lynch] to sell heroin; at best, [Lynch's] alleged co-conspirators were heroin addicts who purchased heroin from [Lynch.]" Lynch's Br. at 65. Such a statement ignores the collective evidence presented at trial against Lynch. As the trial court aptly opined "[t]o accept this argument would require the court to ignore the plain and probative evidence previously outlined[.]" Trial Ct. Op. at 32.
The fact that the co-defendants did not testify to explicit communication with [Lynch], resulting in an "express agreement" to buy/sell heroin is not determinative. Criminal conspiracies most often arise ... not from express, business-like negotiations; they are found in circumstances giving rise to the permissible inference that everyone involved has a firm understanding of the goal or goals to be achieved. [ Commonwealth v. ] Chambers , [647 Pa. 92, 188 A.3d 400, 410 (2018) ].
Considering all the evidence presented at trial, and the permissible inferences to be drawn therefrom, this court remains convinced that the verdicts are not against the weight of the evidence. The lack of evidence of an express or explicit agreement between [Lynch] and his co-defendants is not evidence entitled to greater weight than extremely probative, contrary, circumstantial evidence. Our conscience is not shocked; denying [Lynch] a new trial under these circumstances will not deny justice.
Id. at 33. The trial court did not abuse its discretion in denying Lynch's weight claim. We therefore affirm the judgment of sentence.
Judgment of sentence affirmed. IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA — FRANKLIN COUNTY
COMMONWEALTH OF PENNSYLVANIA CRIMINAL ACTION CP-28-CR-0000883-2017 V. JUDGE JEREMIAH D. ZOOK CHARLES WILLIAM LYNCH, III, DEFENDANT
OPINION SUR PA.R.A.P. 1925(a)
I. PROCEDURAL HISTORY
On March 2, 2017, Trooper Jeffrey Baney of the Pennsylvania State Police (PSP) filed aPolice Criminal Complaint charging the Defendant with: 1) Possession with Intent to Deliver (PWID) and/or Delivery of Heroin1; 2) Conspiracy — PWID Heroin2; 3) Corrupt Organization3; 4) Conspiracy — Corrupt Organization4; 5) Dealing in Proceeds of Unlawful Activity5; 6) Drug Delivery Resulting in Death6; and 7) Criminal Use of a Communication Facility.7 The charges stemmed from an incident that occurred between November 4,
2016, and November 5, 2016. A preliminary hearing was ultimately held on April 27, 2017; all charges were bound over to this court for trial.
On June 1, 2017, the Commonwealth filed a seven-count Bill of Information, adopting the charges originally filed in thePolice Criminal Complaint. The Defendant entered pleas of not guilty on June 7, 2017.
After a number of pretrial delays not relevant herein, this matter proceeded to trial by jury on November 5, 2018. On November 8, 2018, the jury returned verdicts of guilt on six of the seven counts; the Defendant was found not guilty of Count 6 — Drug Delivery Resulting in Death. The court set sentencing for December 12, 2018, and directed the Franklin County Adult Probation Department to prepare a presentence investigative report. The parties were granted leave to file pre-sentence memoranda in prior to sentencing. The Commonwealth filed a sentencing memorandum on December 3, 2018; the Defendant did not file a sentencing memorandum.
At the conclusion of the sentencing proceeding, this court imposed sentence as follows:
Count 1 — PWID — Heroin 60-360 months Count 2 — Conspiracy — PWID Heroin 33-180 months Count 3 — Corrupt Organizations 60-240 months Count 4 — Conspiracy — Corrupt Organizations 30-120 months Count 5 — Dealing in Proceeds of Unlawful Activity 33-120 months Count 7 — Criminal Use of Comm. Facility 18-60 months
With the exception of Count 5, all sentences were ordered to be served consecutive to each other. Count 5 was to be served concurrent with the sentence for Count 3. The aggregate sentence was 201 months (16¾ years) to not more than 960 months (80 years).
On December 26, 2018, the Defendant filed aPost Sentence Motion. This court directed the matter be decided without oral argument or hearing; the parties were granted leave to file briefs by January 31, 2019. On January 8, 2019, theTranscript of Proceedings of Sentencing (Tr.Sentencing ) was filed. The Commonwealth filed its brief on January 30, 2019. The Defendant was granted an extension to file his brief until the transcripts from the trial were filed. On March 6, 2019, the transcripts from trial were filed. The Defendant filed his brief on March 14, 2019.
On March 26, 2019, this court entered anOrder denying the Defendant'sPost Sentence Motion. On April 25, 2019, the Defendant filed the instantNotice of Appeal. The following day, the court directed the Defendant to file a concise statement of matters complained of on appeal. The Defendant timely complied.See Concise Statement of Matters Complained of on Appeal (Concise Statement ), May 17, 2019.
II. ISSUES RAISED
The Defendant raises the following issues:
1. The Commonwealth failed to exercise due diligence in bringing the Defendant to trial within the time prescribed by Pa.R.Crim.P. 600(A)(2)(a);
2. The Defendant should be entitled to a modification of sentence because the trial court committed an abuse of discretion in sentencing the Defendant outside of the Pennsylvania standard range guidelines on all counts without proper explanation and justification;
3. The Defendant should be entitled to a modification of sentence because the sentence imposed by the trial court is inappropriate and excessive in light of the Pennsylvania sentencing factors;
4. Pursuant to 18 Pa.C.S. § 903(c), the trial court erred in sentencing Appellant on two different counts of Conspiracy;
5. The Defendant should be entitled to a modification of sentence pursuant to 42 Pa.C.S. § 9765 because the trial court erred in failing to merge Possession with Intent to Deliver a Controlled Substance, Conspiracy to Possession with Intent to Deliver a Controlled Substance, and Dealing in Proceeds of Unlawful Activity with Corrupt Organizations;
6. The Defendant should be granted a new trial because the trial court erred in allowing the Commonwealth to present a recorded telephone call involving the Defendant, where the telephone call was not produced by the Commonwealth in discovery, the Defendant requested the telephone call months in advance of trial, and without explanation, the Commonwealth did not provide the telephone call to the Defendant's counsel until the eve of trial;
7. The trial court erred in allowing the Commonwealth to present a recorded telephone call involving the Defendant and his mother that was never disclosed to the Defendant or his counsel in violation of Brady v. Maryland, 373 U.S. 83 (1963);
8. The Defendant should be granted a new trial because the Commonwealth made numerous improper and inflammatory statements during its closing argument, which prejudiced the Defendant;
9. The trial court should have granted the Defendant's post-sentence motion for acquittal because there was insufficient evidence presented at trial to prove beyond a reasonable doubt that the Defendant was guilty of Conspiracy to Possession with Intent to Deliver a Controlled Substance, Corrupt Organizations, Conspiracy to Corrupt Organizations, and Dealing in Proceeds of Unlawful Activity; and
10. The Defendant should be granted a new trial because the jury's verdict finding the Defendant guilty of Possession with Intent to Deliver a Controlled Substance, Corrupt Organizations, Conspiracy to Corrupt Organizations, and Dealing in Proceeds of Unlawful Activity was against the weight of the evidence.
See Concise Statement, ¶¶ 1-10. We address each in turn.
III. THIS COURT'S STATEMENT OF REASONS
A. CLAIM OF ERROR 1
The Defendant's first claim of error challenges whether he was brought to trial within the dictates of Pa.R.Crim.P. 600(A)(2)(a). That rule states:
Trial in a court case in which a written complaint is filed against the defendant shall commence within 365 days from the date on which the complaint is filed.
Pa.R.Crim.P. 600(A)(2)(a). We cannot opine on this claim of error because the issue was never raised in this court. We reviewed the entire record and uncovered no motion8 from the Defendant raising such a claim. Accordingly, no evidence was ever presented on the Commonwealth's due diligence and this court never had occasion to consider it.
B. CLAIMS OF ERROR 2 & 3
The Defendant's second and third claims of error relate to sentencing, and assert this court abused its sentencing discretion by imposing excessive sentences outside the sentencing guidelines. The Defendant properly raised these issues in hisPost Sentence
Motion. See Post Sentence Motion, ¶¶ 8-14; Defendant'sBrief in Support of Post-Sentence Motion, SECTION II(I).
Sentencing is a matter of discretion in this Commonwealth, and will not be disturbed absent a "manifest" abuse of that discretion.See, e.g., Commonwealth v. Bullock, 170 A.3d 1109, 1123 (Pa.Super. 2017). Further:
In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias, or ill will, or arrived at a manifestly unreasonable decision.
Bullock, 170 A.3d at 1123 (internal quotations and citations omitted).
The sentencing guideline ranges for each offense,9 and the corresponding minimum sentence10 imposed are set forth below:
COUNT GUIDELINE RANGE MINIMUM SENTENCE IMPOSED (1) PWID — Heroin 27-33 months 60 months (2) Conspiracy — 27-33 months 33 months PWID Heroin (3) Corrupt 27-33 months 60 months Organizations
(4) Conspiracy — 24-30 months 30 months Corrupt Organizations (5) Dealing in 27-33 months 33 months Proceeds of Unlawful Activity (7) Criminal Use of 12-18 months 18 months Communication Facility
Contrary to the Defendant's claim of error, the court imposed standard range sentences on four out of the six counts. We acknowledge that for Counts 1 & 3 the minimum sentences exceeded even the aggravated ranges of the guidelines,i.e., are sentences outside the guidelines. We believe, however, we appropriately exercised discretion in so doing.
The Pennsylvania Sentencing Guidelines11 are "purely" advisory in nature.Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007). While trial courts must consider them, they are not bound to impose a sentence consistent therewith.Id. We clearly considered the applicable guidelines in this case.See Tr.Sentencing, pp. 15-16.
In imposing a sentence outside those guidelines, we explained our reasoning on the record.See Tr.Sentencing, pp. 16-19. Considering the evidence presented at trial of the Defendant's control of a heroin trafficking organization, the significant amount of heroin he was distributing, and the extensive, demonstrated, history of similar conduct, we found the sentencing guideline ranges inadequate to fulfill our duty under 42 Pa.C.S. §§ 9721(b) & 9725. We had the benefit of a presentence investigation report; we were aware of all aggravating and mitigating factors relevant to the Defendant for purposes of sentencing.See Tr.Sentencing, p. 15. InCommonwealth v. Leatherby, 116 A.3d 73, the Superior Court stated:
Here, the trial judge was in possession of a presentence report, so we presume that she was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors. Having been fully informed by the presentence report, the sentencing court's discretion should not be disturbed.
Leatherby, 116 A.3d at 83-84 (internal quotations and citations omitted).
While we acknowledge that several of the minimum sentences imposed were above even the aggravated range of the sentencing guidelines, nothing in the record or the evidence presented at trial contravenes our findings. In short, we do not believe the sentences imposed are inconsistent with our duty to protect the public, recognize the harm done to the community, and provide for the Defendant's rehabilitation.See 42 Pa.C.S. § 9721(b).
C. CLAIM OF ERROR 4
This claim of error challenges this court's imposition of separate sentences for Count 2 — Conspiracy — PWID and Count 4 — Conspiracy — Corrupt Organizations. This issue was raised by the Defendant at the time of sentencing.See Tr.Sentencing, pp. 2, 10-11.
The Defendant relies upon 18 Pa.C.S. § 903(c).See Concise Statement, ¶ 4.
18 Pa.C.S. § 903(c) states:
If a person conspires to commit 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. § 903(c). In evaluating the evidence under § 903(c), our Supreme Court has employed a multi-factor "totality" test; this requires an examination of: 1) the number of overt acts in common; 2) the overlap of personnel; the time period during which the alleged acts took place; 3) the similarity in methods of operation; 4) the locations in which the alleged acts took place; 5) the extent to which the purported conspiracies share a common objective; and 6) the degree to which interdependence is needed for the overall operation to succeed.See Commonwealth v. Koehler, 737 A.2d 225, 245 (Pa. 1999) (quotation and citation omitted). In evaluating this claim, we are required to consider the evidence presented in a light most favorable to the Commonwealth as the verdict winner.See Commonwealth v. Andrews, 768 A.2d 309, 335 (Pa. 2001). We have detailed some of the evidence presented in our analysis of Claim of Error 9, below. We have considered all the evidence presented, but particular emphasis has been given to the testimony recounted later in this opinion.See SECTION III(H)(i),infra.
There was sufficient evidence presented for the jury to conclude multiple conspiracies existed in this case. The overt acts did not overlap to any significant degree, and occurred over at least
a year. The acts involved different participants at various points. The Defendant and Ms. Hollabaugh would travel together to Philadelphia to buy heroin and bring it back to Franklin County. The heroin would be distributed to others involved; sometimes the Defendant himself would deliver it, other times it was only by Ms. Hollabaugh. The heroin and resulting proceeds were stashed at one location for a while, but subsequently moved to another location due to security concerns. Ms. Hollabaugh alone had access to the proceeds and heroin in the safe, but acted under the express or implicit direction of the Defendant. Danzberger and Paul acted independent of the Defendant in terms of their own heroin customers, but the Defendant was their source of heroin supply.
While there was interdependence among the co-defendants and the Defendant for the overall success of the enterprise,i.e., Corrupt Organization, this was outweighed by the evidence of each participants varying degree of involvement. The jury could have reasonably concluded that an agreement to possess heroin with the intent to deliver was a goal they all shared, but was not dependent upon an agreement to have an overall enterprise (Corrupt Organization).
Further, the length of time the Defendant orchestrated this enterprise,i.e., over a year, lends itself to the inference that a conspiracy to commit Corrupt Organizations evolved later, after the conspiracy to possess heroin with the intent to deliver came to fruition. As Ms. Hollabaugh testified, the amount of heroin she and the Defendant purchased for resale increased significantly after six months. The jury could have reasonably inferred the conspiracy to commit corrupt organization came into existence at this point, long after the conspiracy to commit PWID. In short, there was sufficient evidence for the jury to conclude there were separate conspiracies
D. CLAIM OF ERROR 5
The Defendant challenges this court's refusal to merge Count 1 — PWID Heroin, Count 2 — Conspiracy — PWID Heroin, and Count 5 — Dealing in Proceeds of Unlawful Activity with Count 3 — Corrupt Organizations for one sentence.See Concise Statement, ¶ 5. The Defendant raised this issue at the time of sentencing and in hisPost Sentence Motion. See Tr.Sentencing, pp. 7-10;Post Sentence Motion, ¶ 12.
In denying the Defendant's request for relief at the time of sentencing, this court stated its reasoning on the record.See
Tr.Sentencing, pp. 9-10. In denying relief, we considered the case cited by the Commonwealth in its sentencing memorandum, filed December 3, 2018. InCommonwealth v. Stocker, 622 A.2d 333 (Pa.Super. 1994), the Honorable Superior Court faced the question whether the jury must be instructed to specify which predicate acts it found to support the pattern of racketeering activity,i.e., formed the basis for the conviction for Corrupt Organizations. The Superior Court rejected the appellant's argument, noting that the Commonwealth is not required to prove every alleged predicate act beyond a reasonable doubt.Stocker, 622 A.2d at 343. Nor can the jury be required to specify which two predicate acts (at least) were proven beyond a reasonable doubt.Id.
We acknowledge the jury convicted the Defendant on all three counts that alleged to constitute the pattern of racketeering activity. However, we do not believe the court could presume all three formed the basis of the conviction for Corrupt Organizations, since only two were required; because we did not know which two (or all three) formed the basis for the jury's decision, we felt it improper to presume such for purposes of merging sentences. As we stated at the time of sentencing, we are unaware of any appellate decisions
addressing this precise legal argument; we acknowledge the issue addressed inStocker is identical to the issue in this appeal. However, we were unable to locate any other persuasive or precedential authority.
E. CLAIM OF ERROR 6
This claim of error is a challenge to the admission of a recorded telephone call at trial:
involving [the Defendant], where the telephone call was not produced by the Commonwealth in discovery, [the Defendant] requested the telephone call months in advance of trial, and without explanation, the Commonwealth did not provide the telephone call to Appellant's counsel until the eve of trial.
See Concise Statement, ¶ 6. We believe12 this claim of error relates to Commonwealth's Exhibit 6, which is an audio recording played during Susan Hollabaugh's testimony.See Transcript of Proceedings of Jury Trial (Tr.1 ), November 5, 2018, pp. 154-156. The recording was a telephone call between the Defendant and Ms. Hollabaugh.Id.
As noted by the court at the time of the objection, the parties originally brought the matter to the court prior to the start of trial
and off the record.See Tr.1, pp. 154-155. The Defendant's objection was based upon his assertion that the Commonwealth's disclosure of the actual recording was "late."Id. The Commonwealth did not dispute that the actual recording was not disclosed to the Defendant until November 1, 2018, four days prior to the start of trial.Id.
However, as this court also noted, the Defendant was aware of the existence of the recording for "a long time" prior to its actual disclosure.See Tr. 1, p. 155. The Defendant never filed a motion to compel the production of the recording or otherwise sought relief from the court. We do not believe the appropriate remedy was to exclude evidence from trial, otherwise admissible, when the Defendant was aware of its existence for a lengthy period of time prior to trial and did nothing to procure its disclosure by the Commonwealth.
Further, we note that the recording was made because the Defendant was at the time incarcerated.13 The Defendant could have obtained the recording directly from the jail at any time by
utilizing the subpoena power of the court; to the court's knowledge, he did not do so. Under these circumstances, we do not believe this court abused its discretion in overruling the Defendant's objection.
F. CLAIM OF ERROR 7
This claim relates to the Commonwealth's presentation of a recorded telephone call between the Defendant and his mother. This occurred during the Commonwealth's cross-examination of the Defendant.See Transcript of Proceedings of Jury Trial (Tr.2 ), November 6, 2018, pp. 126-127. The phone call was recorded the evening prior to the Defendant's testimony,i.e., November 5, 2018. The Defendant objected to the admission of the recording on the sole basis14 that it violated the dictate ofBrady v. Maryland, 15 i.e., he asserted it was exculpatory evidence withheld by the Commonwealth. We do not agree.
First, and most potently, the evidence was not exculpatory or even arguably exculpatory. As the Commonwealth sought to use the evidence in an attempt to show the Defendant's consciousness of his guilt,i.e., the evidence presented by the Commonwealth on
November 5th "hurt" him because it was truthful.See Tr.2, pp. 127-128.
Secondly, this evidence was not available to the Commonwealth until, at the earliest, the evening of November 5, 2018.See Tr.2, p. 126. At the time this evidence came into existence, the Commonwealth had not closed their case-in-chief. The Commonwealth did not attempt to introduce this evidence in their case-in-chief; therefore it would only be admissible if the Defendant elected to take the stand in his own defense.
Finally, this evidence was not of the kind only available to the Commonwealth. We note the Defendant was aware by this point that his phone calls from the jail were being recorded; indeed, the Commonwealth presented a jail recorded phone call during the first day of trial.See Tr.1, p. 155. Further, the Defendant was aware that his jail calls were recorded for some period of time prior to trial.See Tr.1, p. 155. Since the Defendant was aware that his calls were being recorded by the jail and monitored by law enforcement, it is disingenuous to claim surprise or lack of knowledge of the recording's existence. Since the Defendant was a party to the phone call, he cannot claim ignorance of its substance.
G. CLAIM OF ERROR 8
This claim, as stated by the Defendant is:
[The Defendant] should be granted a new trial because the Commonwealth made numerous improper and inflammatory statements during its closing argument, which prejudiced [the Defendant].
Concise Statement, ¶ 8. We are unable to provide a statement of our reasons at this point for two reasons.
The Defendant failed to cause16 the transcript of the Commonwealth's closing argument to be transcribed.See Transcript of Proceedings of Jury Trial (Tr.4), November 8, 2018, p. 48. The trial transcripts in this matter were lodged on February 26, 2019; the Defendant did not file an objection to the absence of the Commonwealth's closing argument in the transcript prior to the transcripts being filed on March 6, 2019. Further, the Defendant has made no request to supplement the transcripts since.17
Secondly, even if the transcript was available, the Defendant's assertion of error is so vague this court would be unable to reasonably explain any objection made. Without the transcript, it is impossible to even guess; we do not recall from our own memory any objection to the Commonwealth's closing argument.
H. CLAIM OF ERROR 9
The Defendant asserts this court erred in denying his post-sentence motion for acquittal, due to insufficient evidence on the charges of Conspiracy — PWID, Corrupt Organizations, Conspiracy to Corrupt Organizations, and Dealing in Proceeds of Unlawful Activities.See Concise Statement, ¶ 9;see also Post Sentence Motion, ¶¶ 4-5.
(i) Conspiracy — PWID18
The Defendant's challenge to this conviction is focused on whether the Commonwealth presented sufficient evidence of an agreement to possess with the intent to deliver a controlled substance.See Post Sentence Motion, ¶ 5;see also Defendant'sBrief in Support of Post-Sentence Motion, SECTION II(A).
On this element, the Commonwealth first presented the testimony of Richard Danzberger.Tr.1, p. 121. Danzberger is a cousin and friend of the Defendant.Tr.1, p. 122. In 2015, Danzberger lost his job and started selling heroin; he obtained the heroin from the Defendant.Tr.1, p. 123. Danzberger would purchase heroin from the Defendant and either re-sell it all at a profit or consume the extra bags in lieu of making a profit.Tr.1, p. 123.
There were times the Defendant would loan Danzberger heroin; Danzberger would sell the heroin and then pay the Defendant from the proceeds.Tr.1, p. 124. The Defendant was Danzberger's exclusive supplier of heroin.Tr.1, p. 125. Danzberger had approximately ten people that he sold heroin to on a regular basis.Tr.1, p. 125.
Danzberger also testified that he purchased heroin from the Defendant's girlfriend, Susan Hollabaugh, when the Defendant was unavailable; however, this heroin was the Defendant's.Tr. 1, pp. 126-27. On at least one occasion, the Defendant loaned Danzberger a larger-than-usual amount of heroin, since the Defendant was going to be away.Tr.1, p. 127. It was
approximately two-hundred bags of heroin up front, and Danzberger owed the Defendant approximately three-thousand dollars as a result.Tr.1, pp. 127-28.
The Commonwealth next presented the testimony of Susan Hollabaugh.See Tr. 1, p. 140. Ms. Hollabaugh and the Defendant attended high school together, and eventually began a relationship and had a child.Tr.1, p. 141. Ms. Hollabaugh and the Defendant moved in together.Tr.1, p. 141.
At that time, the Defendant was employed as a bouncer; however, he did not earn enough money to support them.Tr.1, pp. 141-42. In order to earn more money, the Defendant began selling heroin and directed Ms. Hollabaugh to do the same.Tr. 1, p. 142. The Defendant found a source of heroin in Philadelphia.Tr.1, p. 142. Ms. Hollabaugh, either alone or with the Defendant, regularly traveled to Philadelphia to purchase heroin for resale in Franklin County.Tr.1, p. 142-45.
These purchases in Philadelphia involved hundreds of bags of heroin for thousands of dollars at a time.Tr.1, pp. 143-44. The Defendant and Ms. Hollabaugh kept their heroin supply in the upstairs apartment to avoid discovery.Tr.1, pp. 144-45. At the
direction of the Defendant, Ms. Hollabaugh gave some of the heroin to the apartment resident in exchange for keeping the heroin stash.Tr.1, p. 145. Ms. Hollabaugh did the majority of the actual drug deliveries at the direction of the Defendant.Tr.1, p. 146.
The Defendant and Ms. Hollabaugh used the money they earned from selling heroin to "pay [their] bills and [they] would go get more heroin with the rest of it."Tr.1, p. 147. After the initial six months of heroin trafficking, the Defendant and Ms. Hollabaugh began to purchase larger supplies of heroin in Philadelphia; at this point they were spending approximately $5,000 per week to purchase 900 bags of heroin.Tr.1, p. 147. This went on for approximately 6 more months.Tr.1, p. 147. Ms. Hollabaugh confirmed that Danzberger was selling heroin for the Defendant.Tr.1, p. 150. Ultimately, authorities apprehended Ms. Hollabaugh returning from Philadelphia with 983 bags of heroin.Tr.1, p. 148.
The heroin was kept in a safe accessible by Ms. Hollabaugh at the direction of the Defendant.Tr.1, p. 151. The safe was originally stored in the upstairs apartment belonging to an individual named "Corey"; after the safe had been broken into at some point, Ms.
Hollabaugh moved it to the home of Kevin and Kelly Paul.Tr.1, p. 151.
Kevin Paul had previously purchased heroin from Ms. Hollabaugh.Tr.1, p. 151. While Paul had the safe in his home, Ms. Hollabaugh often left a cellular phone there so that Paul could sell the heroin.Tr.1, p. 153.
Mr. Paul, for his part, testified in substantial accordance with Ms. Hollabaugh.Tr.1, pp. 170-76. In addition to conducting heroin sales, Mr. Paul was paid in cash and heroin for keeping the safe in his residence.Tr.1, p. 176. Mr. Paul was apprehended by authorities with Ms. Hollabaugh when she was returning to Franklin County with 983 bags of heroin; Mr. Paul had previously gone to Philadelphia with Ms. Hollabaugh to purchase heroin on "maybe two or three" occasions.Tr.1, pp. 174-75.
Kelly Paul also testified.Tr.1, pp. 179-87. She confirmed many of the details provided by her husband and Ms. Hollabaugh.Id.
Considering this evidence, along with all the other evidence not recounted herein, in the light most favorable to the Commonwealth as the verdict winner, there was more than
Hollabaugh moved it to the home of Kevin and Kelly Paul.Tr.1, p. 151.
Kevin Paul had previously purchased heroin from Ms. Hollabaugh.Tr.1, p. 151. While Paul had the safe in his home, Ms. Hollabaugh often left a cellular phone there so that Paul could sell the heroin.Tr.1, p. 153.
Mr. Paul, for his part, testified in substantial accordance with Ms. Hollabaugh.Tr.1, pp. 170-76. In addition to conducting heroin sales, Mr. Paul was paid in cash and heroin for keeping the safe in his residence.Tr.1, p. 176. Mr. Paul was apprehended by authorities with Ms. Hollabaugh when she was returning to Franklin County with 983 bags of heroin; Mr. Paul had previously gone to Philadelphia with Ms. Hollabaugh to purchase heroin on "maybe two or three" occasions.Tr.1, pp. 174-75.
Kelly Paul also testified.Tr.1, pp. 179-87. She confirmed many of the details provided by her husband and Ms. Hollabaugh.Id.
Considering this evidence, along with all the other evidence not recounted herein, in the light most favorable to the Commonwealth as the verdict winner, there was more than
sufficient evidence for the jury to conclude an agreement existed between the Defendant, Danzberger, Hollabaugh, and/or Mr. Paul, to possess heroin with the intent to deliver. An agreement can be either expressly stated, or implied from the attendant circumstances. As our Supreme Court recently noted:
Proving the existence of such an agreement is not always easy, and is rarely proven with direct evidence. 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. Indeed, a conspiracy may be proven inferentially by showing the relation, conduct, or circumstances of the parties, and the overt acts of alleged co-conspirators are competent as proof that a criminal confederation has in fact been formed.
Commonwealth v. Chambers, 188 A.3d 400, 410 (Pa. 2018) (internal citations and quotation marks omitted). Standing alone, the testimony of any one of the witnesses set forth above is sufficient to establish a conspiracy to possess with the intent to deliver a controlled substance; considered together the evidence is overwhelming.
(ii) Corrupt Organizations 19
For this charge, the Defendant challenges whether there was sufficient evidence that the Defendant "committed two or more crimes of racketeering; that there existed a pattern of racketeering activity; that there existed an enterprise; and that there was a pattern of racketeering activity relating to an enterprise."See Post Sentence Motion, ¶ 5;see also Defendant'sBrief in Support of Post-Sentence Motion, SECTION II(B).
"Crimes of racketeering" is not defined in 18 Pa.C.S. § 911; to the court's knowledge, the Defendant's use of this phrase lacks any statutory source. We presume therefore, that it is subsumed within the Defendant's challenge to the sufficiency of the evidence to establish a "pattern of racketeering activity." 18 Pa.C.S. § 911(b);see also Defendant'sBrief in Support of Post-Sentence Motion, Section II(B).
"Pattern of racketeering activity" is defined as:
a course of conduct requiring two or more acts of racketeering activity one of which occurred after the effective date of this section.
18 Pa.C.S. § 911(h)(relating to definitions). "Racketeering activity" includes,inter alia, "an offense indictable under ... The Controlled Substance, Drug, Device and Cosmetic Act," an indictable act under 18 Pa.C.S. § 5111 (relating to dealing in unlawful proceeds), and a conspiracy to commit either or both of these offenses. 18 Pa.C.S. § 911(h)(1)(i), (ii), (iii).
In considering the evidence set forth above with respect to the Conspiracy — PWID Heroin, we have little trouble concluding there was sufficient evidence to establish the offense of Conspiracy under The Controlled Substance, Drug, Device and Cosmetic Act and the underlying offense of Possession with Intent to Deliver Heroin. 18 Pa.C.S. § 911(h); 18 Pa.C.S. 903 & 35 P.S. § 780-113(a)(30). Dealing in Unlawful Proceeds requires that a person conduct a "financial transaction" with knowledge that the property represents proceeds of unlawful activity and either: 1) "acts with the intent to promote the carrying on of the unlawful activity"; or 2) "the transaction is designed in whole or in part to conceal or disguise the nature, location, source, ownership or control of the proceeds of unlawful activity." 18 Pa. C.S. § 5111(a).
"Financial transaction" is defined as:
A transaction involving the movement of funds by wire or other means or involving one or more monetary instruments. The term includes any exchange of stolen or illegally obtained property for financial compensation or personal gain.
18 Pa.C.S. § 5111(f) (relating to Definitions). Based upon the evidence presented at trial, with particular emphasis on the testimony recounted above, the Commonwealth presented sufficient evidence of Dealing in Proceeds of Unlawful Activity. Ms. Hollabaugh's testimony alone20 is sufficient to establish a pattern of obtaining money from the illegal sale of heroin, storing it in someone else's residence to conceal ownership, and moving the funds to Philadelphia in exchange for heroin to be resold,i.e., exchanged for money, in Franklin County. Sufficient evidence was presented to establish a "pattern of racketeering activity."
The term "enterprise" is defined as:
any individual, partnership, corporation, association or other legal entity, and any union or group of individuals associate in fact although not a legal entity, engaged in commerce and includes legitimate as well as illegitimate entities and governmental entities.
18 Pa.C.S. § 911(h)(relating to Definitions). Again, the testimony already recounted, along with all the other evidence presented, was more than sufficient to establish an on-going "enterprise." At a minimum, Ms. Hollabaugh and the Defendant formed a partnership to purchase heroin in Philadelphia, transport it to Franklin County, hold it for resale, and then distribute it in exchange for money. In turn, this money was utilized to purchase more heroin in Philadelphia, in increasing amounts as time went on. Considering the evidence that Danzberger and Paul all participated to varying degrees, the jury could easily conclude beyond a reasonable doubt that they formed a "group of individuals" associated in fact to engage in commerce to buy and sell heroin. There was sufficient evidence of an "enterprise."
Finally, in regards to the Corrupt Organizations offense, the evidence was sufficient that the pattern of racketeering was in furtherance of the on-going enterprise. The PWID-Heroin, Dealing in Unlawful Proceeds, and Conspiracy offenses were deeply intertwined with the association of the Defendant, Hollabaugh, Paul
and Danzberger. As we previously stated above, the evidence was sufficient to establish several conspiracies; however, there is no requirement that a "pattern of racketeering" evolve from one conspiracy. A pattern is not dependent upon one agreement between all members of an enterprise; what matters, in this case, is that the evidence of multiple conspiracies establishes a pattern of racketeering activity. There was more than sufficient evidence of such in this case. Viewing the evidence in the light most favorable to the Commonwealth, the jury's verdict of guilt as to Corrupt Organizations was sustainable.
(iii) Conspiracy — Corrupt Organizations21 & Dealing in Proceeds of Unlawful Activity 22
We have analyzed the potent evidence presented against the Defendant previously; we will not recount it at this point. We adopt our reasoning above, with due consideration of all the evidence presented at trial, as our basis for denying the Defendant'sPost Sentence Motion on these counts.
I. CLAIM OF ERROR 10
The Defendant's tenth and final claim is a challenge to the weight of the evidence for the charges of Conspiracy — PWID, Corrupt Organizations, Conspiracy to Corrupt Organizations, and Dealing in Proceeds of Unlawful Activity. The Defendant raised this issue in hisPost Sentence Motion. See Post Sentence Motion, ¶¶ 6-7; Defendant'sBrief in Support of Post-Sentence Motion, SECTION (II)(E)-(H).
The legal standards governing a challenge to the weight of the evidence presented are well-settled in this Commonwealth:
When reviewing a challenge to the weight of the evidence, we review the trial court's exercise of discretion. A reversal of a verdict is not necessary unless it is so contrary to the evidence as to shock one's sense of justice. The weight of the evidence is exclusively for the finder of fact, who is free to believe all, none or some of the evidence and to determine the credibility of the witnesses. The fact-finder also has the responsibility of resolving contradictory testimony and questions of credibility. We give great deference to the trial court's decision regarding a weight of the evidence claim because it had the opportunity to hear and see the evidence presented.
Commonwealth v. Roane, 204 A.3d 998, 1001 (Pa.Super. 2019) (internal quotation marks and citations omitted). Further:
A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. Rather, the role of the trial court is to determine that notwithstanding all the evidence, certain facts are so clearly of greater weight that to ignore them, or to give them equal weight with all the facts, is to deny justice. A motion for a new trial on the grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict; thus the trial court is under no obligation to view the evidence in the light most favorable to the verdict winner.
Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009) (internal quotation marks and citations omitted).
The Defendant's argument is, in essence, that the co-defendants never testified to an explicit agreement with the Defendant to buy and/or sell heroin.See Defendant'sBrief in Support of Post-Sentence Motion, SECTION II(E)-(H). This lack of an express agreement,i.e., conspiracy, the Defendant argues, underpins the convictions.Id. Without an express/explicit agreement to buy and sell heroin, these convictions are against the weight of the evidence.Id.
To accept this argument would require the court to ignore the plain and probative evidence previously outlined; as we found
above, there was more than sufficient evidence to sustain a verdict of guilty on the conspiracy counts. The fact that the co-defendants did not testify to explicit communication with the Defendant, resulting in an "express agreement" to buy/sell heroin is not determinative. Criminal conspiracies most often arise in the not from express, business-like negotiations; they are found in circumstances giving rise to the permissible inference that everyone involved has a firm understanding of the goal or goals to be achieved.Chambers, supra.
Considering all the evidence presented at trial, and the permissible inferences to be drawn therefrom, this court remains convinced that the verdicts are not against the weight of the evidence. The lack of evidence of an express or explicit agreement between the Defendant and his co-defendants is not evidence entitled to greater weight than extremely probative, contrary, circumstantial evidence. Our conscience is not shocked; denying the Defendant a new trial under these circumstances will not deny justice.
IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA — FRANKLIN COUNTY
COMMONWEALTH OF PENNSYLVANIA CRIMINAL ACTION CP-28-CR-0000883-2017 V. JUDGE JEREMIAH D. ZOOK CHARLES WILLIAM LYNCH, III, DEFENDANT
ORDER
NOW, this 11th day of June, 2019,IT IS HEREBY ORDERED that the Franklin County Clerk of Courts transmit the forgoingOpinion, Sur. Pa.R.A.P. 1925(a) and the record of these proceedings to the Prothonotary of the Superior Court of Pennsylvania pursuant to Pa.R.A.P. 1931(c).
By the Court, ________ JUDGE JEREMIAH D. ZOOK