February 14, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
MICHAEL CLAIR STYERS, Appellant
Appeal from the Judgment of Sentence May 24, 2012 In the Court of Common Pleas of Clearfield County Criminal Division at No(s): CP-17-CR-0000889-2008
BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.
Appellant, Michael Clair Styers, appeals from the judgment of sentence of an aggregate term of 22 – 44 years' incarceration and fines totaling $90, 000, imposed following his conviction for numerous drug-related offenses. Appellant claims the evidence was not sufficient to sustain his convictions. After careful review, we vacate Appellant's sentence and remand for resentencing, but otherwise leave Appellant's conviction undisturbed.
The trial court summarized the facts pertaining to Appellant's drug-related convictions as follows:
During the course of an eight (8) day trial, the Commonwealth presented the testimony of over twenty (20) witnesses who were connected with or participated in the cocaine distribution ring alleged in this case. Of those, at least ten (10) witnesses provided testimony directly regarding [Appellant] and/or his involvement in selling or trading heroin, OxyContin, and/or fentanyl, and even more witnesses testifying to his involvement with cocaine. For example, Jacob Pittman testified that he bought 'pills' from [Appellant] for personal use, those pills being "Oxycontin, Dilaudid, methadose [sic] pills, whatever, anything with an opiate base." Mr. Pittman also testified that [Appellant], at times, would have a lot of pills – kept in a pill bottle on his person.
Darla L. Daub also testified that she bought fentanyl patches and OxyContin from [Appellant]. She stated that she also witnessed Joey Hunter get fentanyl patches from [Appellant], and that the patches were the kind with gel. Ms. Daub further testified that she bought OxyContin in 10, 40, and 80 milligrams for about $50.00 or $60.00 per pill from [Appellant]. She also testified to seeing [Appellant] carry pills in a white pill bottle, and that she bought morphine sulfates from [Appellant] on a couple of occasions.
Brandon J. ("BJ") Kifer testified that [Appellant] traded pills with his mother, Cindy Kifer, for cocaine. He went on to explain that his mother traded 90-milligram OxyContin pills with [Appellant] for cocaine.
Joseph Michael Hunter testified that he had back surgery in 2005 and was prescribed OxyContin and Percocets for pain. After first dealing with Michael Gearhart, Mr. Hunter started to sell/trade OxyContin pills to [Appellant] for cocaine. He testified to selling [Appellant] two (2) OxyContin pills for one (1) gram of cocaine, with the transaction taking place in [Appellant]'s garage. Further, Mr. Hunter also testified that [Appellant] brought back heroin from one of his trips to Philadelphia. He testified that he had seen heroin before at [Appellant]'s home, and that [Appellant] had brought five (5) bundles with ten (10) stamp bags in each bundle back from Philadelphia.
Renee Krumenacker, a then friend of Autumn Kifer, testified that she was using cocaine with Autumn, BJ Kifer, and Cindy Kifer back in 2005. During this time, she testified that she spent approximately $25, 000.00 total on cocaine, which she bought from [Appellant]. During the course of her association with the Kifers and [Appellant], Ms. Krumenacker also testified that she witnessed Cindy Kifer trade prescription pills for cocaine with [Appellant] on fifty or more occasions.
Jane Gearhart testified that in 2006 she accompanied her son, now deceased, and Jacob Pittman to [Appellant]'s residence in order to purchase cocaine and OxyContin. She testified that a typical trip would include purchasing two (2) OxyContin 80 milligram pills and one (1) to two (2) grams of cocaine from [Appellant]. She approximated that the group made similar trips about five or six times in 2006, and that the OxyContin would run at $80.00 per pill.
Also testifying for the Commonwealth was Richard William Smeal. Mr. Smeal testified that he broke his back in a 2005 work related accident and was prescribed pain pills. Instead of using his prescribed medication, he used cocaine and purchased it regularly from [Appellant]. Mr. Smeal further testified that he saw [Appellant] dealing in opiates, mainly OxyContin, and would trade them for cocaine and then resell them. He also testified that [Appellant] would get Fentanyl patches for his customers as well, preferring the patches containing the gel. Additionally, he saw [Appellant] with heroin or heroin at [Appellant]'s residence, and saw people purchase it occasionally.
TCO, at 8 – 10.
On September 25, 2008, a grand jury recommended that criminal charges be filed against 14 individuals, including Appellant, for their involvement in the cocaine distribution ring centered in Clearfield County. The Office of the Attorney General filed a criminal complaint against Appellant on October 31, 2008, charging him with "various counts of possession with intent to deliver, delivery of a controlled substance, persons not to possess or transfer firearms, dealing in proceeds of unlawful activity, criminal use of a communication facility, burglary, criminal trespass, theft by unlawful taking, receiving stolen property, criminal conspiracy, criminal attempt, and corrupt organizations." Trial Court Opinion (TCO), 5/28/13, at 1 – 2. On January 23, 2013, an eight day trial began, wherein Appellant was tried jointly alongside codefendants Maharaji Hemingway and Charles Gearhart. Appellant was subsequently "found guilty on all counts except charges relating to several Rite Aid burglaries, alleged to have been committed by" Appellant. Id. at 2.
On April 5, 2012, in order to assess the applicability of mandatory minimum sentences, the trial court conducted an evidentiary hearing for the purpose of determining the weight of the narcotics that formed the basis for Appellant's delivery convictions. Subsequently, on May 24, 2012, the trial court sentenced Appellant to an aggregate term of 22 – 44 years' incarceration, which included several mandatory minimum sentences imposed pursuant to 18 Pa.C.S. § 7508. Appellant then filed a timely post-sentence motion which was denied by operation of law on December 27, 2012. Appellant filed a timely notice of appeal, and now presents the following questions for our review:
. Did the lower court err in denying Appellant's post-sentence motions for judgment of acquittal in relation to charges 1, 5, 7, 9, 11, 13, 17, 19, 26, and 27, as said convictions were against the sufficiency of the evidence produced at trial[?]
. Did the lower court err in denying Appellant's post-sentence motion for judgment of acquittal in relation to charge 3, as said conviction was against the sufficiency of the evidence produced at trial[?]
Appellant's Brief at 4.
Both of Appellant's claims concern the sufficiency of the evidence, for which our standard of review is well-settled:
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. Hutchinson, 947 A.2d 800, 805-06 (Pa.Super. 2008) (emphasis omitted) (quoting Commonwealth v. Andrulewicz, 911 A.2d 162, 165 (Pa.Super. 2006) (citations omitted)).
Appellant divides his first sufficiency claim into sub-arguments by substance. Regarding his convictions for possession with intent to deliver (PWID) cocaine, he discusses the testimonial evidence and admits that "numerous witnesses testified that they received a substance from Appellant that gave them the same effects that cocaine had given them in the past." Appellant's Brief at 17. However, he argues, "there is absolutely no evidence to show that these substances were in fact cocaine. The substances the witnesses were given could have been any substance with similar affects [sic] as cocaine. With no science, there is no proof sufficient to convict Appellant." Id. at 17 – 18.
We disagree. Appellant concedes that multiple witnesses testified regarding their familiarity with cocaine, and that the substances delivered by Appellant conformed to their expectations of cocaine's effects. Appellant does not cite any statute or case law that would suggest that a conviction for PWID, delivery of, or even a mere possession of a controlled substance is infirm because the Commonwealth was unable to present evidence that the substance possessed or delivered was scientifically confirmed to be the purported controlled substance. In fact, case law directs us to the opposite conclusion.
In Commonwealth v. Aikens, 118 A.2d 205 (Pa.Super. 1955), the appellant raised an identical claim regarding his delivery of heroin. In rejecting the claim, this Court reasoned as follows:
In the present case a chemical analysis was as unnecessary as it was impossible. [The appellant] sold the drug to the witness under the name of heroin. The witness was a habitual user of heroin, she knew its effect, and the substance purchased from [the appellant] gave her the usual effect. [The appellant] must have known that the witness was an addict, and that those enmeshed in the habit are steady buyers. We think there was sufficient evidence to justify the trial judge['s] … finding that [the appellant] sold heroin to the witness in violation of the act.
Commonwealth v. Aikens, 118 A.2d 205, 207 (Pa.Super. 1955).
Similarly, in the instant case, numerous witnesses testified regarding their familiarly with cocaine. They testified regarding their mutual understanding with Appellant that he was selling and/or trading the substance, and that the substance they obtained from Appellant, when ingested, gave them the usual effect that they expected from cocaine. Moreover, unlike the single witness's testimony at issue in Aikens, the testimonies in this case were corroborative of each another. These circumstances are sufficient to sustain Appellant's cocaine-related convictions. Id.; see also Commonwealth v. Minott, 577 A.2d 928, 932 (Pa.Super. 1990) ("It is … well-established in this Commonwealth that the identity of illegal narcotic substances may be established by circumstantial evidence alone, without any chemical analysis of the seized contraband."); and see Hutchinson, 947 A.2d at 806 ("The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence.").
Appellant raises similar arguments with regard to his Oxycontin/Oxycodone convictions. However, he additionally asserts that "[t]here was no evidence provided that witnesses received anything that reminded them of previous experience with Oxycontin/Oxycodone." Appellant's Brief at 20. Although this fact was not present in the relevant testimonies, there was other circumstantial evidence supporting the conclusion that Appellant had distributed Oxycontin. There was testimony that Appellant would trade cocaine for Oxycontin. For instance, Joseph Michael Hunter testified that he was prescribed Oxycontin due to back injuries he suffered. He stated that he would trade two Oxycontin pills for one gram of cocaine from Appellant in Appellant's garage. Other witnesses also testified to having observed Appellant's receiving Oxycontin pills in trade for cocaine. The jury could have reasonably concluded that Appellant was reselling the pills he received from Joseph Hunter and others. These circumstances are sufficient to sustain Appellant's Oxycontin-related convictions. See Aikens, Minott, Hutchinson.
Appellant's third argument concerns his Fentanyl-related conviction. We do not dispute, as Appellant argues, that there was not a copious amount of evidence supporting this conviction. No witnesses testified to having purchased Fentanyl patches from Appellant. No witnesses testified as to their familiarity with Fentanyl. However, two witnesses testified to having seen Appellant in possession of Fentanyl patches. One of those witnesses, Darla Daub, observed Appellant deliver Fentanyl patches to Joseph Hunter. The other witness, Richard Smeal, did not testify to observing a specific transaction in which the patches were involved, but he did testify that Appellant "would get Fentanyl patches for his customers as well, preferring the patches containing the gel." TCO, at 10.
We reiterate that in reviewing a sufficiency claim, "the entire record must be evaluated and all evidence actually received must be considered." Hutchinson, 947 A.2d at 806. Here, there was overwhelming evidence that Appellant oversaw a substantial drug-distribution operation involving multiple substances. Such evidence generally corroborates Darla Daub's and Richard Smeal's testimony that Appellant was trading for and distributing Fentanyl as well. The jury could have reasonably concluded that Appellant delivered Fentanyl patches based upon the evidence of these combined circumstances. Accordingly, we conclude that the evidence was sufficient to sustain his Fentanyl-related conviction. See Aikens, Minott, Hutchinson.
Appellant's final argument raised under his first sufficiency issue concerns his convictions for criminal use of a communication facility, corrupt organizations, and conspiracy. However, Appellant acknowledges that these are derivative claims premised upon the preceding sufficiency arguments. Appellant's Brief at 21 – 22. Hence, because we conclude that Appellant's preceding sufficiency arguments are meritless, his derivative claims are as well.
Appellant's second question concerns his conviction for heroin. He contends that the evidence supporting the heroin conviction was even weaker than that which the Commonwealth presented for all of the other controlled substances. He concedes that the jury heard testimony from Arianne Brocious who observed Appellant use heroin provided to him by his son. He also concedes that Joseph Hunter testified that he observed five bundles (50 doses) of heroin in Appellant's possession. However, Appellant contends that no one ever observed Appellant selling or otherwise distributing the substance, in addition to the fact that no scientific evidence existed that the substance observed by Brocious and Hunter was in fact heroin.
We observe, initially, that Appellant misapprehends the nature of the offense for which he was convicted. The Controlled Substance, Drug, Device and Cosmetic Act provides as follows:
(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:
(30) Except as authorized by this act, 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.
35 P.S. § 780-113(a)(30) (emphasis added).
Thus, the Commonwealth was not required to prove that Appellant "delivered" heroin in order to sustain a conviction under the foregoing statute. The Commonwealth was only required, in the context of this case, to demonstrate that Appellant possessed heroin with the intent to deliver it.
Nevertheless, the record simply belies Appellant's claim. The trial court notes that "Richard Smeal testified that he saw heroin at [Appellant]'s residence and various people coming over to purchase it." TCO, at 11. Such evidence supports both the delivery and PWID elements of the statute. Moreover, this testimonial evidence was corroborated by Brocious' and Hunter's testimony, as well as by the substantial other evidence that established that Appellant sold and/or traded in a cornucopia of controlled substances. Accordingly, we conclude that Appellant's second sufficiency claim is meritless. Aikens, Minott, Hutchinson.
Finally, although not raised or addressed by Appellant, we conclude that Appellant's mandatory minimum sentences are illegal in light of the Supreme Court's decision in Alleyne v. United States, 133 S.Ct. 2151, 2156 (2013). On April 5, 2012, following Appellant's jury trial, the trial court held a post-conviction/pre-sentence hearing in order to determine the applicability of mandatory minimum sentences as defined by 18 Pa.C.S. § 7508(a)(2). The trial court subsequently sentenced Appellant in accordance with those findings, subjecting him to several mandatory minimum sentences.
"A challenge to the legality of the sentence may be raised as a matter of right, is non-waivable, and may be entertained so long as the reviewing court has jurisdiction." Commonwealth v. Robinson, 931 A.2d 15, 19–20 (Pa.Super. 2007) (en banc). Furthermore, "[s]o long as jurisdictional requirements are met, '[a]n illegal sentence … may be reviewed sua sponte by this court.'" Commonwealth v. Edrington, 780 A.2d 721, 723 (Pa.Super. 2001) (quoting Commonwealth v. Archer, 722 A.2d 203, 209 (Pa.Super. 1998)). The phrase 'illegal sentence' is a term of art in Pennsylvania Courts that is applied to three narrow categories of cases. Robinson, 931 A.2d at 21. Those categories are: "(1) claims that the sentence fell 'outside of the legal parameters prescribed by the applicable statute'; (2) claims involving merger/double jeopardy; and (3) claims implicating the rule in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)." Id.
[I]n Alleyne, the United States Supreme Court expressly overruled Harris [v. United States, 536 U.S. 545 (2002)], holding that any fact that increases the mandatory minimum sentence for a crime "is 'an element' that must be submitted to the jury and found beyond a reasonable doubt." Alleyne, 133 S.Ct. at 2155, 2163. The Alleyne majority reasoned that "[w]hile Harris limited Apprendi to facts increasing the statutory maximum, the principle applied in Apprendi applies with equal force to facts increasing the mandatory minimum." Alleyne, 133 S.Ct. at 2160. This is because "[i]t is impossible to dissociate the floor of a sentencing range from the penalty affixed to the crime[, ]" and "it is impossible to dispute that facts increasing the legally prescribed floor aggravate the punishment." Id. at 2161. Thus, "[t]his reality demonstrates that the core crime and the fact triggering the mandatory minimum sentence together constitute a new, aggravated crime, each element of which must be submitted to the jury." Id.
Commonwealth v. Munday, 78 A.3d 661, 665-66 (Pa.Super. 2013).
Section 7508 provides, in relevant part, as follows:
(b) Proof of sentencing.--Provisions of this section shall not be an element of the crime. Notice of the applicability of this section to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth's intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider evidence presented at trial, shall afford the Commonwealth and the defendant an opportunity to present necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.
18 Pa.C.S. § 7508(b) (emphasis added).
The record indicates that Appellant received several mandatory minimum sentences pursuant to Section 7508. As Section 7508(b) indicates, the statute requires that the facts determining the applicability of the mandatory minimum sentences set forth in Section 7508(a) are to be 1) determined at sentencing and, thus, not submitted to a jury; and 2) subjected to a "preponderance of the evidence" standard of proof. 18 Pa.C.S. § 7508(b). We assume, as we must, that the trial court adhered to these standards in sentencing Appellant to the mandatory minimums prescribed by Section 7508. As such, the dispositive fact establishing the applicability of the mandatory minimum sentence provided for by Section 7508, the weight of the narcotics involved in Appellant's transactions, was neither submitted to the jury nor subjected to the appropriate standard of proof. In Commonwealth v. Munday, 78 A.3d 661 (Pa.Super. 2013), this Court held that the imposition of a sentence pursuant to a similar mandatory minimum sentencing provision constituted an illegal sentence. At issue in that case was a mandatory minimum sentence set forth in 42 Pa.C.S. § 9712.1:
Presuming the trial court followed the dictates of section 9712.1(c) (and we have no reason to presume otherwise), the determination of whether Appellant, "at the time of the offense[, ] [was] in physical possession or control of a firearm" under section 9712.1(c) was treated as a 'sentencing factor' and not 'an element' of the underlying drug offense. As such, the trial court was only required to make such a finding based upon a preponderance of the evidence rather than based upon proof beyond a reasonable doubt. Commonwealth v. Allen, 508 Pa. 114, 494 A.2d 1067, 1070 (1985) (providing that when a sentencing factor "is not an element of the offense ... [it only] requires proof of the sentencing factor by a preponderance of the evidence"). However, Alleyne undeniably establishes, despite our legislature's express statutory language to the contrary in this instance, that when a mandatory minimum sentence is under consideration based upon judicial factfinding of a 'sentencing factor, ' that 'sentencing factor' is, in reality, "an element of a distinct and aggravated crime" and, thus, requires it be proven beyond a reasonable doubt.
Munday, 78 A.3d at 666 (quoting Alleyne, 133 S.Ct. at 2163).
Similarly, we conclude that Appellant received an illegal sentence at each count in which Section 7508 was applied in this case. Because the facts justifying the application of Section 7508 were neither put before the jury nor proven beyond a reasonable doubt, Alleyne dictates that Appellant's mandatory minimum sentences "violated the Due Process Clause of the Fourteenth Amendment and the jury trial guarantee of the Sixth Amendment." Munday, 78 A.3d at 666. Accordingly, we vacate Appellant's sentence and remand this matter for resentencing.
Judgment of sentence vacated. Case remanded for resentencing. Jurisdiction relinquished.