Appeal from the Judgment of Sentence August 15, 2011, Court of Common Pleas, Bedford County, Criminal Division at No. CP-05-CR-0000321-2010
BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.
Gene Baker ("Baker") appeals from the judgment of sentence entered on August 15, 2011, by the Court of Common Pleas, Bedford County, following his convictions of seven counts of possession of a controlled substance, seven counts of possession with intent to deliver a controlled substance ("PWID"), and one count of possession of drug paraphernalia. Upon review, we affirm the judgment of sentence. Further, we refuse to review the trial court's denial of Baker's ineffective assistance of counsel claim, which was raised by way of a post-trial motion, as we find that Baker's waiver of relief under the Post Conviction Relief Act was not express, knowing and voluntary.
The charges arose after Baker sold heroin and/or cocaine to an undercover state police officer and a confidential informant on six separate occasions – May 18, May 24, May 26, June 4, June 17, and June 22, 2010. Upon returning to his residence after the June 22 buy, police arrested Baker and executed a search of his home pursuant to a warrant. During the search, Baker showed the police heroin that he had hidden in a letter holder on his wall. Police also recovered, inter alia, drug paraphernalia from
Baker's bedroom, a soda can converted into a pipe for smoking drugs, and a sawed off shotgun from the top of a bookshelf located approximately eight feet from the heroin in the letter holder.
Baker denied that he sold drugs on May 18, 24, and 26, testifying that he rode with the confidential informant to another location at which the confidential informant purchased drugs from an unknown man in a beige Buick. He admitted to selling drugs on June 4, 17, and 22, stating he only did so because the confidential informant was "dope sick, " and Baker felt sorry for him. He testified that the drugs he sold to the confidential informant were drugs he maintained solely for personal use.
A jury convicted Baker of the above-listed charges. By agreement of the parties, the trial court included a special interrogatory on the verdict slip whereby the jury determined whether the firearm was in close proximity to the controlled substance found in the home. The jury found that the sawed off shotgun recovered during the search of the home was in close proximity to the heroin located in the letter holder on the wall of Baker's home. The trial court sentenced Baker on August 15, 2011 to an aggregate term of 15 to 31 years of imprisonment, broken down as follows:
• Count 1 - one to two years of imprisonment;
• Count 2 - two to four years of imprisonment, concurrent with Count 1;
• Count 3 - two to four years of imprisonment, concurrent with Count 1, consecutive to Count 2;
• Count 4 - two to four years of imprisonment, concurrent with Count 1, consecutive to Counts 2 and 3;
• Count 5 - two to four years of imprisonment, concurrent with Count 1, consecutive to Counts 2, 3, and 4;
• Count 6 - one to two years of imprisonment, concurrent with all other sentences imposed;
• Count 7 - seven to 15 years of imprisonment, concurrent with Counts 1 and 6, consecutive to Counts 2, 3, 4, and 5;
• Counts 8 through 14 for possession of a controlled substance merge for sentencing purposes with the above PWID sentences;
• Count 15 for possession of drug paraphernalia - six months to one year of imprisonment, concurrent with all other sentences imposed.
On August 22, 2011, Baker filed a timely post-sentence motion, which the trial court denied on January 23, 2012. Baker filed a timely notice of appeal and complied with the trial court's order for a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court did not issue a separate opinion pursuant to Pa.R.A.P. 1925(a), and instead relied upon its opinion dismissing Baker's post-sentence motions to address the issues raised on appeal.
Baker raises five issues for our review:
1. Whether the trial court erred in finding the evidence sufficient to convict [Baker] of the offense of possession with intent to deliver at count seven of the information for the substance seized inside [Baker's] residence since the Commonwealth did not prove the such [sic] substance to be heroin?
2. Whether the trial court erred in applying the 5-year mandatory minimum at 42 Pa.C.S. § 9712.1 when the Commonwealth failed to [prove] that the substance proximate to the firearm was a controlled substance or that such substance was possessed with the intent to deliver?
3. Whether the sentencing court erred by imposing the 5-year mandatory minimum at 42 Pa.C.S. § 9712.1 consecutive with the 2-year mandatory minimum at 18 Pa.C.S. § 7508(a)(7)(i) for one criminal offense when not authorized and in conflict with 42 Pa.C.S. § 9716?
4. Whether the sentencing court abused its discretion in imposing sentence by running consecutively all of those terms in which mandatory minimums had been applied, resulting in a non-individualized sentence that exceeded the gravity of the criminal conduct and abnegated rehabilitation?
5. Whether the trial court erred in denying the claims of ineffective assistance of counsel raised in the post-sentence motions and after waiver of post-conviction review when trial counsel's lack of preparation had no reasonable strategic or tactical purpose and resulted in prejudice?
Baker's Brief at 9-10 (emphasis omitted).
We begin with Baker's sufficiency of the evidence claim, which we review according to the following standard:
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.
Commonwealth v. Knox, 50 A.3d 749, 754 (Pa. Super. 2012), appeal granted on other grounds, __Pa. __, __ A.3d __, 2013 WL 2451355 (June 6, 2013).
Baker challenges the sufficiency of the evidence to convict him of his seventh count of PWID, relating to the drugs recovered during the execution of the search warrant. Specifically, he asserts that the Commonwealth failed to prove that the substance recovered from the letter holder was in fact a controlled substance, and he therefore should have been acquitted of that charge. Baker's Brief at 16. Although he recognizes that a controlled substance may be identified as such by circumstantial evidence,  he states that because there was no testimony about field or lab testing of the substance, the evidence was not sufficient to prove that the substance was heroin. Id. at 16-20. What Baker fails to acknowledge, however, is that Baker himself admitted that the substance found in the letter holder was heroin – he admitted this not only to the police during the execution of the warrant, but also when he testified at trial. See N.T., 4/27/11, at 126, 137-38, 214-15. A defendant is bound by admissions of fact he makes on the record at trial. Commonwealth v. Johnson, 961 A.2d 877, 882-83 (Pa. Super. 2008). As such, this argument fails.
Baker also argues that the Commonwealth failed to prove that he intended to deliver the controlled substances found on his person and in the letter holder inside his home as a result of the execution of the search warrant. Baker's Brief at 20-22. "It is well settled that all the facts and circumstances surrounding possession are relevant in making a determination of whether contraband was possessed with intent to deliver." Commonwealth v. Brown, 904 A.2d 925, 931 (Pa. Super. 2006), appeal denied, 591 Pa. 710, 919 A.2d 954 (2007).
Baker is correct that there was some evidence presented that suggested the drugs found may have been for personal use, e.g., a soda can that had been converted into a pipe, and Baker's testimony that the drugs found were for his personal use. N.T., 4/27/11, at 129-30, 216. There was also ample evidence presented, however, that Baker intended to sell the drugs in question. There were items found during the search of Baker's residence that suggest the sale of drugs, including owe sheets, a razor blade, two small false-compartment safes, and three cell phones. Id. at 129-33. The 15 vials of crack cocaine and five vials of heroin found on his person were located in a black change purse, from which he had just provided the drugs he sold to the undercover state trooper during the last controlled buy. N.T., 4/27/11, at 92, 177-78. Along with the drugs, police ...