Appeal from the Judgment of Sentence September 17, 2010 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0001701-2009
BEFORE: STEVENS, P.J., [*] FORD ELLIOTT, P.J.E., BOWES, GANTMAN, PANELLA, SHOGAN, LAZARUS, MUNDY, and OTT, JJ.
Andre Raymelle Watley appeals nunc pro tunc from the judgment of sentence of twelve years and four months to twenty-five years incarceration after a jury convicted him of possession with intent to deliver ("PWID") Ecstasy, conspiracy to commit PWID, possession of Ecstasy, possession of a small amount of marijuana, false identification to law enforcement, and two counts of firearms not to be carried without a license. The trial court also adjudicated Appellant guilty of two summary traffic offenses, speeding and driving while operating privileges are suspended or revoked. After careful review, we affirm.
State police effectuated a traffic stop of Appellant and his passenger, Randy Hayward, after observing them traveling at ninety-five miles per hour in a forty-five mile per hour zone. The stop occurred at approximately 1:45 a.m. on February 14, 2009, on State Route 22 in Northampton County, Pennsylvania. After pulling over the vehicle, Trooper Michael Acevedo and Trooper Lucas Lohrman approached. Trooper Lohrman walked to the passenger's side of the car while Trooper Acevedo went to the driver's side, where Appellant was seated. When asked why he was traveling at such a high rate of speed Appellant indicated that he was going to Easton Hospital. However, Appellant had passed two exits leading to the hospital. Appellant turned over to police a Pennsylvania identification card with the name "Chonce Acey." Hayward informed police that he was Jermaine Jones, and his birth date was October 4, 1982, but he was unable to provide his social security number.
The troopers ran the information and learned that Jermaine Jones was an alias for Hayward, who had an outstanding warrant for his arrest in New Jersey. Trooper Lohrman removed Appellant from the car and took the keys to the vehicle before allowing Appellant to re-enter it. The troopers also asked Hayward to exit the vehicle. When Hayward stepped from the vehicle, police noticed that the floor mat was raised into a high bump and an object appeared to be underneath it. While placing Hayward under arrest, Trooper Acevedo lifted the floor mat and discovered a loaded .22 caliber handgun. Trooper Acevedo promptly alerted his partner, drew his own weapon, and ordered Appellant to step from the car and show his hands. Rather than comply, Appellant who was on his cellular phone, fled the scene by running across the road and its median before crossing the opposing lanes of travel and into a wooded area. Trooper Acevedo gave chase for approximately fifteen minutes, but was unable to locate Appellant.
Before police ordered the towing of the vehicle, Hayward requested a jacket that was in the backseat. Police searched the coat for weapons before turning it over to Hayward and discovered two receipts from Western Union containing Appellant's name. Police also obtained a search warrant for the car and discovered a .25 caliber pistol, a .25 caliber magazine, a box of .22-caliber ammunition, a container with a small amount of marijuana, and thirty-four Ecstasy pills. These items were located in the passenger side glove compartment.
Hayward provided police with a written statement, as follows:
On the date of February 13th I was picked up by "TEF" whose real name is Andre Watley around 6'o[']clock in the evening he was driving a [I]mpala (silver) which he told me was rented for him by a female friend by the name of Erica[.] [W]e proceeded to drive thru Allentown while he made his drops and transactions[.] [A]round 10 or 11 I got dropped off at Philly's sport[s] bar on Hamilton for a few while he had to go get something. He picked me up around 11:30 or 12 and told me about a party going on in Easton at Larry Holmes Ringside Bar and Grille so we headed out that way about 1:15 or so before we made it to Ringside we were pulled over on 22 East. When the officers initially turned the lights over he stated let's keep going we can outrun them and I stated "no" because we were only speeding and that's when Andre Watley told me there's a slammer under the seat which means "gun" and I said so it's not min[e] and he said it isn't mine either by then the officers were at my window asked for License reg. insurance and ID[.] I didn't have mine and gave them my alias Jermaine Jones which came back as my real name Randy Hayward[.] I was then taken into custody and the gun was found under the seat and Andre took off running.
Commonwealth's Exhibit 6, Hayward Statement.
Prior to Appellant's trial, Hayward also pled guilty to conspiracy related to the firearms possession and admitted that he was in a vehicle driven by Appellant that contained two firearms and that he was not licensed to carry such weapons. This information was presented to the jury. When he testified at Appellant's trial, however, Hayward denied knowing Appellant or having been with Appellant on the morning of the stop. In addition, he denied any knowledge of Ecstasy being in the car or that police provided him with his Miranda rights, and he did not remember writing the drops and transactions statement. That statement, which was adopted by Hayward, was introduced as substantive evidence.
The jury returned guilty verdicts on the aforementioned charges. The court imposed a mandatory minimum sentence of five years pursuant to 42 Pa.C.S. § 9712.1. In addition, the court sentenced Appellant to a consecutive three and one-half to seven year term of imprisonment for both firearms not to be carried without a license convictions, and a consecutive period of four months to one-year incarceration for the false identification count. Appellant filed a timely post-sentence motion, which the trial court denied. Appellant did not file a timely direct appeal. Instead, Appellant filed a petition pursuant to the Post-Conviction Relief Act, seeking reinstatement of his direct appeal rights nunc pro tunc. The court afforded relief, and this appeal ensued. A panel of this Court reversed Appellant's convictions for PWID and conspiracy to commit PWID in an unpublished memorandum, with one judge dissenting. The Commonwealth sought re-argument, which this Court granted.
Appellant now presents two issues for our review:
(1) Whether the verdict for unlawful possession of a controlled substance with intent to deliver was against the sufficiency of the evidence.
(2) Whether the verdict for conspiracy – unlawful possession of a controlled substance with intent to deliver was against the sufficiency of the evidence.
Appellant's brief at 6.
Both of Appellant's issues implicate the sufficiency of the evidence introduced at trial. In analyzing such claims, "we must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt." Commonwealth v. Brown, 52 A.3d 320, 323 (Pa.Super. 2012). Critically important, we must draw all reasonable inferences from the evidence in favor of the Commonwealth as the verdict-winner. Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa.Super. 2013). "Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail." Brown, supra at 323. Of course, "the evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented." Id.
The Commonwealth can meet its burden "by wholly circumstantial evidence and 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." Id. It is improper for this Court "to re-weigh the evidence and substitute our judgment for that of the fact-finder." Id. Additionally, "the entire record must be evaluated and all evidence actually received must be considered." Id.
Appellant relies extensively on Commonwealth v. Kirkland, 831 A.2d 607 (Pa.Super. 2003) (Opinion by Bowes, J.), and argues that, absent expert testimony, his conviction cannot be sustained. In Kirkland, police responded to a domestic dispute and arrived at the defendant's home. Kirkland's wife informed police that Kirkland threatened her with a gun and assaulted her. Police searched Kirkland's person, and found car keys, a pocket knife, and a screwdriver. Kirkland's wife then told police that the gun could be in Kirkland's car. When peering through the window of the car, police observed a dinner plate with a white chunky substance on the backseat. The substance tested positively for cocaine and weighed 6.876 grams. Also in the car were several unused ziplock packets and a razor blade with cocaine residue. We held in Ki ...