February 25, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
CHARLES GEARHART, Appellant v.
Appeal from the Judgment of Sentence Entered May 24, 2012 In the Court of Common Pleas of Clearfield County Criminal Division at No(s): CP-17-CR-0000891-2008
BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.
Appellant, Charles Gearhart, appeals from the judgment of sentence of an aggregate term of 11 – 18 years' incarceration, imposed following his conviction for 19 drug-related offenses. Appellant contends that the evidence was insufficient to support the charged offenses, that the verdict was against the weight of the evidence, and that the Commonwealth engaged in sentencing manipulation. After careful review, we vacate Appellant's sentence and remand for resentencing.
The trial court summarized the procedural history of this case as follows:
As a result of a grand jury investigation which began in approximately 2006, a presentment of various drug charges including delivery of cocaine, possession with intent to deliver cocaine, conspiracy, criminal use of communication facility, dealing in proceeds of unlawful activities[, ] and corrupt organization were filed by the Attorney General against Clearfield County residents Michael Styers and [Appellant, ] as well as Philadelphia resident Maharaji Hemingway. The Grand Jury determined that Styers was the head of a cocaine distribution network operating primarily in Clearfield, Clearfield County and that [Appellant] was one of Styers' principal cocaine dealers. It was alleged that Hemingway, a/k/a Bean, was the main source for cocaine from Philadelphia. Following lengthy pretrial proceedings, including an appeal to the Superior Court by the Attorney General, a consolidated trial for all three defendants was held before the Court on Monday, January 23, 2012 through Wednesday, February 1, 2012. Following deliberations, … [Appellant] was convicted of all counts set forth within the Information ….
[Appellant] filed a timely appeal to the Superior Court. Trial Court Opinion (TCO), 10/3/12, at 1 – 2.
Appellant now presents the following questions for our review:
I. Whether the trial [c]ourt erred where the evidence presented is insufficient to sustain a conviction for [the] crimes charged.
II. Whether the trial [c]ourt erred where the weight of the evidence presented [at] trial was insufficient to sustain a conviction.
III. Whether the trial court erred by determining that the Commonwealth did not engage in "sentencing manipulation."
Appellant's Brief, at v.
Appellant's first claim concerns the sufficiency of the evidence. Our standard of review of sufficiency claims is well-established:
A claim challenging the sufficiency of the evidence is a question of law. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Where the evidence offered to support the verdict is in contradiction to the physical facts, in contravention to human experience and the laws of nature, then the evidence is insufficient as a matter of law. When reviewing a sufficiency claim the court is required to view the evidence in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal citations omitted).
In asserting that the evidence was not sufficient to support his convictions, Appellant does not specifically address any crime of which he was convicted but for the charges of criminal conspiracy, criminal use of a communication facility, and dealing in proceeds of unlawful activities. Although he cites the elements of conspiracy, arguably in an effort to address all of the drug charges collectively that were otherwise omitted from the argument portion of his brief, he summarily concludes that he "was merely at the scene, but the Commonwealth failed to prove beyond a reasonable doubt that [Appellant] had the requisite intent to sustain this charge and the evidence presented did not rise above mere suspicion." Appellant's Brief, at 2. Appellant does not support his claim by citing to any portion of the evidentiary record. This is problematic in terms of our ability to review his claim because Appellant was convicted of multiple drug offenses that occurred under different circumstances and at different times, and for which the evidence had been established through the testimony of multiple witnesses.
"When briefing the various issues that have been preserved, it is an appellant's duty to present arguments that are sufficiently developed for our review. The brief must support the claims with pertinent discussion, with references to the record and with citations to legal authorities." Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa.Super. 2007), appeal denied, 596 Pa. 703, 940 A.2d 362 (2008) (citations omitted); Commonwealth v. Whitaker, 30 A.3d 1195, 1197 n. 7 (Pa.Super. 2011); Pa.R.A.P. 2119(b). We "will not act as counsel and will not develop arguments on behalf of an appellant. Moreover, when defects in a brief impede our ability to conduct meaningful appellate review, we may dismiss the appeal entirely or find certain issues to be waived." Hardy, 918 A.2d at 771.
In re R.D., 44 A.3d 657, 674 (Pa.Super. 2012).
Because Appellant has failed to cite to the record to support his sufficiency claim(s), and also failed to provide meaningful discussion with respect to those issues as they pertain to his drug-related convictions and related conspiracy charge, we deem those arguments waived. In re R.D., supra. Furthermore, concerning his conviction for criminal use of a communication facility and dealing in proceeds of unlawful activities, Appellant does discuss those charges specifically and he cites to the pertinent statutory provisions that set forth the elements of those crimes. However, Appellant does not cite to any portion of the record or engage in a meaningful discussion of the relevant evidence pertaining to those crimes that was actually offered by the Commonwealth at trial. Accordingly, we deem the remainder of Appellant's sufficiency claim waived, as well. Id.
Appellant also challenges the weight of the evidence supporting the verdict. Although Appellant cites the appropriate legal standard by which a trial court should analyze a weight-of-the-evidence claim, he does not address the appellate standard of review. In any event, Appellant's subsequent, single paragraph argument merely makes boilerplate allegations that the Commonwealth's witnesses were not credible, and does so without any citation to, or meaningful discussion of, the Commonwealth's evidence. Accordingly, we also deem Appellant's weight of the evidence claim waived for his failure to develop the claim in a manner permitting meaningful appellate review. In re R.D., supra.
Finally, Appellant argues that the trial court erred when it rejected his allegation that the Commonwealth engaged in sentencing manipulation.
Sentencing manipulation occurs when "a defendant, although predisposed to commit a minor or lesser offense, is entrapped in committing a greater offense subject to greater punishment." It often is asserted in narcotics matters, typically reverse sting cases, in which government agents determine the amount of drugs a target will purchase. Sentencing entrapment or manipulation is similar to traditional notions of entrapment in that it requires extraordinary misconduct by the government. However, it differs from classic entrapment in that it is not a complete defense to criminal charges and, therefore, cannot serve as a basis for acquittal. Instead, it provides a convicted defendant the opportunity for a reduced sentence, typically in the form of a downward departure from the sentencing guidelines. It also can be used to exclude one of several criminal transactions included in a sentencing scheme. It may even provide relief from a mandatory sentence.
Commonwealth v. Paul, 925 A.2d 825, 830 (Pa.Super. 2007) (internal citations omitted).
This Court has held:
With our acceptance of the premise underlying sentencing entrapment and manipulation, we adopt the standard typically applied in such cases, namely, the existence of "outrageous government conduct" or "extraordinary government misconduct" which is designed to and results in an increased sentence for the convicted defendant. This standard presents a heavy burden for the defendant seeking a sentence reduction. Simply put, sentencing entrapment/manipulation is difficult to prove; it is not established "simply by showing that the idea originated with the government or that the conduct was encouraged by it, ... or that the crime was prolonged beyond the first criminal act ... or exceeded in degree or kind what the defendant had done before."
Commonwealth v. Petzold, 701 A.2d 1363, 1366-67 (Pa.Super. 1997) (citation omitted).
Here, applying the above standard, the trial court found that the Commonwealth did not engage in sentencing manipulation. The trial court reasoned that:
The criminal charges in this case that were filed against all three defendants came as a result of a Grand Jury investigation which started in 2006. That Grand Jury investigation continued for approximately two and one-half years prior to the presentment being issued in September 2008. The investigation was clearly historical in nature and was based upon the testimonies of co-conspirators, accomplices[, ] and drug users. There were no controlled buys that were made by police or agents of the Attorney General in regard to any of the Defendants. The charges against [Appellant] all relate to time periods from January 2005 through June 2007. No charges were filed against [him] for any conduct which occurred after he testified before the Grand Jury on February 6, 2008.
[Appellant] claims that since he was identified as a target at some point in 2005, sentencing manipulation occurred because the Attorney General allowed him to continue his activity throughout the investigation. However, the record reveals no reasonable means by which the Commonwealth had any opportunity to arrest him in 2005 through 2007, other than the Mann Road incident in April, 2006. In addition, this claim by [Appellant] is boilerplate in nature. [Appellant] makes only a general claim of sentence manipulation and provides no specific allegation of fact as to what the Commonwealth should have done to arrest him at some earlier time.
TCO, at 7 – 8.
Appellant now argues that:
From the start of the investigation, law enforcement stood back and allowed criminal activity to continue, raising mandatory minimums on all charges. Law enforcement engaged in sentencing manipulation, allowing for harsher punishment [for] these crimes. In this case, the two-year investigation was considerably longer than needed. Without allowing investigators to participate in sentencing manipulation, [Appellant] would not be facing such a severe sentence, if any at all.
Appellant's Brief at 6 – 7.
Appellant continues to assert a boilerplate claim of sentencing manipulation. His argument does not reference any specific outrageous or extraordinary conduct on the part of law enforcement. He does not cite to any portion of the factual record in an attempt to demonstrate, directly or by inference, that the Commonwealth unnecessarily prolonged the criminal investigation at issue in this case in order to aggravate the penalties to which Appellant would be exposed. We conclude, therefore, that Appellant has failed to adequately develop this claim in a manner that would provide for meaningful appellate review. In re R.D., supra. Accordingly, we deem it waived. Id.
Nevertheless, our review of the record indicates that Appellant received several mandatory minimum sentences pursuant to 18 Pa.C.S. § 7508. Such sentences are illegal in light of the Supreme Court's decision in Alleyne v. United States, 133 S.Ct. 2151, 2156 (2013). Accordingly, we vacate Appellant's sentence and remand for resentencing.
"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 nine 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. 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.