Opinion
J-S47011-15 No. 2093 MDA 2014
08-04-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. JASON RAMSEY, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence entered October 31, 2014, in the Court of Common Pleas of Dauphin County, Criminal Division, at No(s): CP-22-CR-0001141-2014 BEFORE: ALLEN, OTT and STRASSBURGER, JJ. MEMORANDUM BY ALLEN, J.:
Retired Senior Judge assigned to the Superior Court.
Jason Ramsey ("Appellant") appeals from the judgment of sentence imposed after a jury convicted him of delivery of a controlled substance, carrying a firearm without a license, and possession with intent to deliver a controlled substance, and the trial court convicted him of persons not to possess firearms. We affirm.
35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 6106(a)(1), 35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 6105(c)(2).
The trial court recounted the factual background as follows:
Detective Sean Cornick ("Det. Cornick") of the Harrisburg Bureau of Police ("HBP") is assigned to the vice unit which is responsible for investigating police matters relating to drug possession, use and trafficking. In the performance of his duties, Det. Cornick regularly utilizes Confidential Informants ("CI") to facilitate contact with suspected drug dealers. OnTrial Court Opinion, 5/19/15, at 2-6 (citations to notes of testimony and footnotes omitted).
November 13, 2013, Det. Cornick came into contact with a CI who said he would be willing to arrange a drug deal with an individual known as "J Money."
The drug deal was set up by cellphone call by the CI in the presence of Det. Cornick and a meeting was set up to buy $40 of crack cocaine at 15th and Berryhill Streets in Harrisburg City. Det. Cornick heard a male voice speaking on the phone when the CI set the meeting. In advance of the meeting, the CI was searched for contraband at a secure location and provided with $40 in cash that had been photographed by police for future verification purposes. The CI travelled to the meeting point in an unmarked police vehicle with Detective Dennis Simmons ("Det. Simmons") also with the HBP vice unit.
Det. Cornick and his partner, Detective Lau, went to 15th and Berryhill Streets and parked on the east side [of] 15th Street in advance of Simmons and the CI to observe and video tape the pre-arranged transaction. Det. Cornick described the meeting area as a high drug/high crime area. He and Det. Lau were in contact with Det. Simmons by cellphone.
Upon arrival at the meeting place, Det. Simmons observed Appellant walking towards the police vehicle at which time the CI exited. The CI walked a few feet away in [a] southwest direction, encountered Appellant and exchanged money for a plastic baggie containing an off-white chunky substance. According to Det. Simmons, he maintained continuous visual contact with the CI and Appellant and no one else was observed in the area. Following the transaction, Appellant walked south as the CI re-entered Det. Simmons's vehicle. Det. Simmons immediately retrieved the drugs and left the scene. He contacted Det. Cornick to inform him of what had happened. Upon meeting with Det. Cornick and Lau, the CI was searched again during which no contraband or buy money was found.
Det. Cornick also observed the encounter between Appellant and the CI. He could see that Appellant had come from a vehicle parked on the west side of 15th Street and when he returned after the drug transaction, Cornick also saw him enter a silver van. The video taken by Detectives Cornick and Lau showed Appellant's face, the clothes he was wearing, a lanyard he was wearing and him getting into the silver van.
At this point in time, Cornick and Lau decided to execute "buy/bust" and move in to arrest Appellant. Det. Cornick radioed the Harrisburg Street Crimes Unit ("SCU") to execute the arrest when, simultaneously, the silver van pulled away. Detectives Cornick and Lau followed the van while maintaining contact with SCU when the van eventually came to a stop at 13thand Kittatinny Streets. Members of the SCU who responded to the scene pulled in front of and behind the van to block it in and activated the emergency lights. The van suddenly began moving again when the passenger opened the door, fell out, ran and was pursued by Probation Officer Travis Bannings of the SCU. The van then hit another vehicle after Appellant also exited and fled southbound on 13th Street. Officer Joshua Hammer ("Ofc. Hammer") of the SCU pursued Appellant on foot for approximately 2-3 blocks until he collapsed and stopped running. Officer Hammer took Appellant into custody and conducted a search incident to arrest which uncovered $160 and a lanyard key chain from around his neck. The money included the $40 that police had provided to the CI to make the drug sale.
While SCU was in pursuit of Appellant and the passenger, Detectives Cornick and Lau secured the silver van. When looking into the silver van through the rolled up window, the detectives saw, in plain view, a nine millimeter Smith and Wesson handgun sitting on the passenger seat. Det. Cornick photographed the handgun for evidence. Det. Lau seized and unloaded the weapon for safety purposes then sealed it in an evidence bag.
After his arrest, Appellant was transported to the central judicial center where Det. Cornick made contact with him. Appellant was Mirandized and questioned regarding the drug deal and the recovered firearm. Appellant acknowledged that he understood his constitutional rights. Appellant said he was giving the passenger a ride, that he did not know his name. When questioned about the gun, Appellant stated that it was not his ... "[y]ou seen where the gun was at." However, when Det. Cornick asked Appellant how he knew where the gun was at in the car, Appellant "...just put his head down."
A warrant was obtained to search the impounded vehicle and the search uncovered a box of plastic sandwich baggies, a baggie of suspected crack cocaine, and a cellphone. Det. Cornick called a number logged onto the cellphone and it rang to
Det. Simmons' phone which had been used to set up the drug deal with the CI. The suspected crack cocaine field tested positive and was confirmed as 4.75 grams of crack cocaine after testing by Albert Lattanzi, Jr. of the Pennsylvania State Police Crime Lab.
On October 31, 2014, the trial court sentenced Appellant to a term of imprisonment of 24 to 60 months for delivery of cocaine (count 1), a consecutive 36 to 84 months for carrying a firearm without a license (count 2), 48 to 96 months of imprisonment for persons not to possess a firearm (count 3), to be served concurrent with counts 1 and 2, and 24 to 60 months for possession with intent to deliver (count 4), to be served concurrent with count 1, for an aggregate term of imprisonment of five (5) to twelve (12) years.
Appellant filed a post-sentence motion on November 3, 2014, which the trial court denied on December 3, 2014. Appellant appealed. Both Appellant and the trial court have complied with Pa.R.A.P. 1925(b).
Appellant presents two issues for our review:
1. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT'S POST-SENTENCE MOTION BECAUSE THE JURY VERDICT WAS SO CONTRARY TO THE WEIGHT OF THE EVIDENCE AS TO SHOCK ONE'S SENSE OF JUSTICE WHERE APPELLANT WAS NEVER SHOWN TO HAVE POSSESSED A FIREARM?Appellant's Brief at 5.
2. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING APPELLANT TO AN AGGREGATE SENTENCE OF FIVE (5) TO TWELVE (12) YEARS OF INCARCERATION WHERE THE SENTENCE WAS EXCESSIVE AND UNREASONABLE?
In his first issue, Appellant argues that his convictions for carrying a firearm without a license and persons not to possess firearm were against the weight of the evidence.
The offense of carrying a firearm without a license is defined as follows:
Except as provided in paragraph (2), any person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree.18 Pa.C.S. § 6106(a)(1). The offense of persons not to possess a firearm is defined as follows:
A person who has been convicted of an offense enumerated in subsection (b), within or without this Commonwealth, regardless of the length of sentence or whose conduct meets the criteria in subsection (c) shall not possess, use, control, sell, transfer or manufacture or obtain a license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth.18 Pa.C.S § 6105(a)(1).
A motion for a new trial alleging that the verdict was against the weight of the evidence is addressed to the discretion of the trial court. An appellate court, therefore, reviews the exercise of discretion, not the underlying question whether the verdict is against the weight of the evidence. The factfinder is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. The trial court will award a new trial only when the jury's verdict is so contrary to the evidence as to shock one's sense of justice. In determining whether this standard has been met, appellate review is limited to whether the trial judge's discretion was properly exercised,Commonwealth v. Diggs , 949 A.2d 873, 879-80 (Pa. 2008) (internal citations omitted).
and relief will only be granted where the facts and inferences of record disclose a palpable abuse of discretion. Thus, the trial court's denial of a motion for a new trial based on a weight of the evidence claim is the least assailable of its rulings.
In support of his weight challenge, Appellant asserts that there was no physical evidence to corroborate the Commonwealth's argument that Appellant controlled, carried, or constructively possessed the firearm that was located on the passenger side seat of the van that Appellant was operating. Appellant's Brief at 15-18. Rather, Appellant argues that his convictions for carrying or possessing of the firearm were based solely upon speculative evidence, given the absence of physical or forensic evidence linking Appellant to the firearm found on the passenger seat. Accordingly, Appellant argues that the verdicts were against the weight of the evidence.
In order to prove constructive possession, the Commonwealth must have demonstrated that appellant had the "ability to exercise a conscious dominion over the illegal substance." Constructive possession is: "the power to control the contraband," and "the intent to exercise that control." These elements may be inferred from the totality of the circumstances, and may be established circumstantially. "Constructive possession is an inference arising from a set of facts that possession of the contraband was more likely than not." Furthermore, constructive possession may be proven where the item in issue is in an area of joint control and equal access. "Possession of the illegal substance need not be exclusive; two or more can possess the same [contraband] at the same time."Commonwealth v. Jackson , 659 A.2d 549, 551 (Pa. 1995) (citations omitted). "The purpose of the constructive possession doctrine is to expand the scope of possession statutes to encompass those cases where actual possession at the time of arrest cannot be shown but where the inference that there has been actual possession is strong. We have held that constructive possession exists if an individual has 'conscious dominion' over the illegal property. Constructive possession by its nature is not amenable to 'bright line' tests. We have held, therefore, that it may be established by the totality of the circumstances." Commonwealth v. Carroll , 507 A.2d 819, 820-821 (Pa. 1986) (citations omitted).
Here, the trial court explained:
As Appellant is challenging the weight of the evidence upon which the jury rendered its verdict, the sufficiency of the evidence on this charge is conceded. An examination of the record reveals that the Commonwealth established that except for Appellant, no one entered or exited the silver van before, during, or immediately after the drug deal with the CI. After Appellant and the passenger fled from the vehicle, Detectives Cornick and Lau immediately saw the gun on the passenger seat in plain view. The location of the gun was clearly within reach of Appellant as the driver. The passenger fled first, but did not take the gun with him. When questioned about the passenger, Appellant stated that he did not know him and that he was only giving him a ride.Trial Court Opinion, 5/19/15, at 8.
More important to the finding of constructive possession or joint constructive possession are [Appellant's] own statements to Det. Cornick. Appellant denied ownership of the gun based on where in the car it had been found. However, it is notable that Det. Cornick had not mentioned where it was found and when Appellant was questioned on this point, he merely hung his head without a response.
Ample evidence of record was presented by the Commonwealth to permit the jury to infer constructive possession of the firearm found in the vehicle to render a verdict that does not shock the conscience of [the trial c]ourt.
We agree with the trial court that the Commonwealth presented evidence of adequate weight to permit a jury to conclude that Appellant maintained constructive possession of the firearm recovered from his vehicle. Testimony at trial established that Appellant was operating the vehicle when stopped by police. When asked by Detective Cornick if the gun belonged to him, Appellant responded "no, it's not my gun. You seen where the gun was at," indicating that he had knowledge of the gun and where it was located in the vehicle. N.T., 10/28-29/14, at 71. Although Appellant claims that any inference that the gun belonged to him was purely speculative because the gun was found on the passenger seat, "[t]he fact that another person may also have control and access does not eliminate the defendant's constructive possession; two actors may have joint control and equal access and thus both may constructively possess the contraband." Commonwealth v. Haskins , 677 A.2d 328, 330 (Pa. Super. 1996). The jury in this instance, within its exclusive province as the arbiter of credibility, concluded that the gun was constructively possessed by Appellant. Under the totality of the circumstances (immediately prior to the police encounter Appellant had been involved in a drug transaction with the confidential informant, thereafter no one was seen entering or exiting Appellant's vehicle indicating that the passenger was in the vehicle during Appellant's drug transaction with the confidential informant, and the gun was located in an area of equal access and control of both the driver and the passenger, who both fled when pursued by police), we find no error in the trial court's determination that Appellant's convictions for carrying a firearm without a license and persons not to possess firearms were sustained by the weight of the evidence. Appellant's weight of the evidence challenge is without merit.
In his second issue, Appellant raises a challenge to the discretionary aspects of his sentence, asserting that the trial court abused its discretion when it sentenced him to five (5) to twelve (12) years of imprisonment. This Court has explained, "[a] challenge to the discretionary aspects of a sentence must be considered a petition for permission to appeal, as the right to pursue such a claim is not absolute." Commonwealth v. Treadway , 104 A.3d 597, 599 (Pa. Super. 2014) (citations omitted).
To reach the merits of a discretionary sentencing issue, we conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, Pa.R.Crim.P. [708]; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 [Pa.C.S.A.] § 9781(b).Commonwealth v. Cook , 941 A.2d 7, 11 (Pa. Super. 2007).
Appellant has preserved his claim by filing a post-sentence motion and timely notice of appeal. Appellant has additionally included in his brief a concise statement pursuant to Pa.R.A.P. 2119(f). See Appellant's Brief at 12-14. Therefore, we must determine whether Appellant has raised a substantial question for our review.
Appellant argues that his sentence is excessive given his rehabilitative needs, and that the sentence exceeds what is necessary to protect the public and prevent Appellant from committing similar crimes. Appellant's Brief at 13-14; 18-19. In essence, Appellant argues that the trial court failed to properly consider the sentencing factors set forth in 42 Pa.C.S. § 9721, thus presenting a substantial question for our review. See Commonwealth v. Buterbaugh , 91 A.3d 1247, 1266 (Pa. Super. 2014) quoting Commonwealth v . Dodge , 77 A.3d 1263, 1272, n.8 (Pa. Super. 2013) ("[A]rguments that the sentencing court failed to consider the factors proffered in 42 Pa.C.S. § 9721 does present a substantial question, whereas a statement that the court failed to consider facts of record, though necessarily encompassing the factors of § 9721, has been rejected."). Therefore, we proceed to address the merits of Appellant's claim.
Our standard of review in sentencing matters is well-settled:
Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. 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.Commonwealth v. Garcia-Rivera , 983 A.2d 777, 780 (Pa. Super. 2009).
42 Pa.C.S.A. § 9721(b) states:
[T]he sentence imposed should call for confinement 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 on the community, and the rehabilitative needs of the defendant.42 Pa.C.S.A. § 9721(b).
Section 9781(c) specifically defines three instances in which the appellate courts should vacate a sentence and remand: (1) the sentencing court applied the guidelines erroneously; (2) the sentence falls within the guidelines, but is "clearly unreasonable" based on the circumstances of the case; and (3) the sentence falls outside of the guidelines and is "unreasonable." 42 Pa.C.S. § 9781(c); Commonwealth v. Bricker , 41 A.3d 872, 875-76 (Pa. Super. 2012) (citations omitted). "[T]he term 'unreasonable' generally means a decision that is either irrational or not guided by sound judgment. [A] sentence can be defined as unreasonable either upon review of the four elements contained in § 9781(d) or if the sentencing court failed to take into account the factors outlined in 42 Pa.C.S.A. § 9721(b)." Commonwealth v. Daniel , 30 A.3d 494, 497 (Pa. Super. 2011), quoting Commonwealth v . Walls , 926 A.2d 957 (Pa. 2007). Pursuant to 42 Pa.C.S.A. § 9871(d), we must have regard for the following statutory factors in our review of the certified record: (1) the nature and circumstances of the offense and the history and characteristics of the defendant, (2) the opportunity of the sentencing court to observe the defendant, including any presentence investigation, (3) the findings upon which the sentence was based, and (4) the guidelines promulgated by the commission. 42 Pa.C.S.A. § 9871(d)(1)-(4). Additionally, when evaluating a challenge to the discretionary aspects of sentence, it is important to remember that the sentencing guidelines are purely advisory in nature. Commonwealth v. Yuhasz , 923 A.2d 1111, 1118 (Pa. 2007); see also Commonwealth v. Walls , 926 A.2d at 963 ("the [sentencing] guidelines merely inform the sentencing decision").
At the sentencing hearing in this case, the trial court heard from the Commonwealth who recounted Appellant's criminal history, which included multiple prior convictions for possession of controlled substances, possession with intent to deliver, persons not to possess a firearm, and carrying a firearm without a license. N.T., 10/31/14, at 6-11. Additionally, the trial court heard from Appellant's counsel, who discussed Appellant's age, family circumstances and educational background, and his history of good behavior while imprisoned. Id. The trial court also heard from Appellant, who acknowledged that he had made "bad choices" and expressed his intent to rehabilitate himself. Id. at 12. After consideration of the foregoing, the trial court imposed a sentence in the standard range of the sentencing guidelines. Upon review, we conclude that the record contains ample support for the trial court's imposition of a standard range sentence, and we find no basis upon which to conclude that the sentence was unreasonable. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/4/2015