September 10, 2013
COMMONWEALTH OF PENNSYLVANIA, Appellee
JEFFREY J. HAMPTON, Appellant
Appeal from the Judgment of Sentence of November 18, 2011 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0004702-2009
BEFORE: BOWES, OTT, and STRASSBURGER, [*] JJ.
Jeffrey J. Hampton (Appellant) appeals from his aggregate judgment of sentence of 7 to 14 years of incarceration for six counts of delivery and/or possession with intent to deliver (PWID) (methamphetamine), four counts of PWID (cocaine), sixteen counts of criminal conspiracy (PWID), three counts of possession of a controlled substance, and ninety-four counts of criminal use of communication facility. We affirm.
A jury convicted Appellant of the above crimes on March 17, 2011. Appellant was found not guilty of numerous other drug-related charges, including corrupt organizations, conspiracy to conduct corrupt organizations, and dealing in the proceeds of unlawful activity.
Appellant's conviction for delivery of methamphetamines and cocaine, and the trial court's subsequent determination that he possessed specific quantities of both substances, subjected him to mandatory minimum terms of seven years' incarceration and five years' of incarceration, respectively. See 18 Pa.C.S. §§ 7508(a)(4)(ii) and (a)(3)(ii), respectively. Accordingly, on November 18, 2011, the trial court sentenced Appellant to an aggregate term of 7 to 14 years' incarceration.
On November 28, 2011, Appellant filed a timely post-sentence motion challenging both his conviction and his sentencing, specifically the application of the mandatory minimum sentences. On July 3, 2012, the trial court denied Appellant's motion. Appellant filed a timely notice of appeal. Both Appellant and the trial court complied with the provisions of Pa.R.A.P. 1925.
On appeal, Appellant contends that the trial court erred in determining that the Commonwealth proved by a preponderance of the evidence that the he possessed with the intent to deliver quantities of methamphetamine and cocaine sufficient to warrant application of the mandatory sentencing provisions in section 7508.
At the outset, we must address the Commonwealth's contention that Appellant's issue implicates the discretionary aspects of his sentence and, as such, is waived because Appellant has failed to include, in his brief, a concise statement of reasons relied upon for allowance of appeal from the discretionary aspects of sentencing as required by Pa.R.A.P. 2119(f). As this Court has noted previously, "[o]rdinarily, a challenge to the application of a mandatory minimum sentence is a non-waivable challenge to the legality of the sentence. This is so because by statute, courts have no authority to avoid imposing the mandatory minimum, assuming certain factual predicates apply." Commonwealth v. Johnson, 920 A.2d 873, 880 (Pa. Super. 2007) (citation omitted). Accordingly, we find no merit to the Commonwealth's argument.
As noted above, Appellant frames his issue as a challenge to the sufficiency of the evidence related to the trial court's imposition of the mandatory minimum sentencing provisions. Such an issue implicates a mixed question of law and fact requiring a hybrid standard of review. See Commonwealth v. Manahan, 45 A.3d 413, 415-416 (Pa. Super. 2012). Thus, we address Appellant's claims mindful of the following. "[W]hen reviewing factual findings and credibility determinations by a sentencing court, we accept the findings of fact unless they are clearly erroneous." Id. at 416 (citing Commonwealth v. Myers, 722 A.2d 649, 652 (Pa. 1998)). Our scope of review is plenary. Further, "we review the evidence in a light most favorable to the Commonwealth, since it was the successful party below." Id.
Appellant argues that the evidence presented at trial and at his sentencing hearing was insufficient to warrant application of the section 7508 mandatory minimum sentences. Appellant's Brief at 15. Appellant contends that the Commonwealth did not prove that he possessed the required amount of controlled substances under the statute at any given time. Id. at 17. Additionally, as only a small amount of cocaine was seized during Appellant's arrest, Appellant argues that the Commonwealth's assertion that he possessed the statutory amount of cocaine or methamphetamines at any time is purely speculative and contrary to Appellant's own testimony that he is a heavy drug user. Id. Moreover, relying on Commonwealth v. Clark, 895 A.2d 633 (Pa. Super. 2006) and Commonwealth v. Ratsamy, 885 A.2d 1005 (Pa. Super. 2005), Appellant notes that even if he did possess the statutory amount, that evidence alone is insufficient to prove that he possessed those substances with the intent to deliver, as opposed to for his own personal use. Id. at 18-19.
With respect to the latter argument, Appellant neglects to note that our Supreme Court reversed this Court's decision in Ratsamy on the basis that this Court had engaged in an improper re-weighing of the evidence, and concluded that, under the totality of the circumstances, the evidence presented to the sentencing court was indeed sufficient to impose a mandatory minimum sentence under section 7508. See Commonwealth v. Ratsamy, 934 A.2d 1233 (Pa. 2007). As a result of the Supreme Court's decision in Ratsamy, Clark was also overturned. See Commonwealth v. Clark, 942 A.2d 895 (Pa. 2008). Thus, Appellant's reliance on our analysis in Ratsamy and Clark is misplaced. Indeed, our Supreme Court's ultimate resolution of Ratsamy and Clark supports the trial court's determination in the instant case.
We now turn to Appellant's arguments regarding the trial court's fact- finding at sentencing. The trial court found as follows.
…pursuant to [section 7508], it is "appropriate for the trial court to determine at sentencing whether the amount of narcotics which [defendant] intended for delivery equaled or exceeded that which made applicable the mandatory sentence provision of the statute." Commonwealth v. Carroll, 651 A.2d 171 (Pa. Super. 1994). In the instant case, William Lees and Agent Deery testified as to coded language used by [Appellant] and others when talking about methamphetamine. Their testimony established that words such as "trucks, " "big Cadillac, " "big one, " and "small Camaro" referred, to multi-ounce quantities of methamphetamine. In contrast, the words Daily News, " "magazine, " and "sandwich" referred to smaller quantities intended for personal use. This testimony, along with surveillance and wire-tapped conversations, proves by a preponderance of the evidence that on five occasions (Counts 1, 5, 9, 11 and 12), [Appellant] purchased between ten and 100 grams of methamphetamine with the intent to deliver it to other persons. Thus, the court properly sentenced [Appellant] to the mandatory minimums for these offenses in accordance with 18 Pa.C.S. Section 7508.
At the sentencing hearing, [Appellant] testified that the most methamphetamine he would obtain at one time was three and one-half grams. He testified that a "truck" was three and one-half grams and a "small car, " a "small one, " a "magazine" or a "Daily News" referred to one gram. He further testified that he was an addict and would use anywhere from three and one-half to seven grams of methamphetamine a day. See N.T., 11/18/2011, pp. 6-10. The sentencing court, as fact-finder, however, was free to believe some, all or none of his testimony. Unfortunately for [Appellant], the court did not believe his testimony and instead found credible the testimony of Mr. Lees and Agent Deery. Their testimony, along-with wire-tapped conversations, surveillance and other evidence introduced at trial, prove by a preponderance of the evidence that [Appellant] possessed amounts of methamphetamine with the intent to distribute same in sufficient quantities to trigger the mandatory minimums mandated by 18 Pa.C.S. Section 7508.
Further, the evidence introduced at trial proves that [Appellant] purchased between ten and 100 grams of cocaine for distribution to others. The testimony of Agent Deery establishes that references to "550" meant one-half ounce of cocaine. Thus, when [Appellant] asked for "550, " he was looking to acquire one-half ounce (or 14 grams) of cocaine. The accompanying wire-tapped conversations, surveillance and other evidence introduced at trial prove by a preponderance of the evidence that [Appellant] did, in fact, obtain the requested amount of cocaine for distribution to others. Therefore, the court correctly found that 18 Pa.C.S. Section 7508 applied to Counts 18, 19 and 21, and properly sentenced [Appellant] to the mandatory minimums.
Trial Court Order, 7/3/2012, at 4-6 n.1.
Viewing the evidence in the light most favorable to the Commonwealth, we cannot say that the trial court's findings were clearly erroneous. See Manahan, supra. Instantly, the substance of the wiretapped conversations, as explained and translated by Lees and Derry, is sufficient to sustain the trial court's factual findings that Appellant possessed between ten and 100 grams of cocaine and between ten and 100 grams of methamphetamine with intent to deliver. Therefore, Appellant's argument does not entitle him to relief.
Judgment of sentence affirmed.