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[U] Commonwealth v. Lee

Superior Court of Pennsylvania

March 13, 2014



Appeal from the Judgment of Sentence entered August 7, 2013, in the Court of Common Pleas of Franklin County, Criminal Division, at No(s): CP-28-CR-0002312-2010 and CP-28-CR-0002313-2010.




Gabriel Domonic Lee ("Appellant") appeals from the judgment of sentence entered after a jury convicted him of two counts of delivery of controlled substances, and one count of criminal use of a communication facility.[1]

The trial court summarized the pertinent facts as follows:
On November 17, 2010, [M.C.] was working as a confidential informant for the Franklin County Drug Task Force. On that date, [M.C.] purchased some cocaine from [Appellant]. He had known [Appellant] for a couple of months before that transaction. To set up the deal, [M.C.] sent [Appellant] a text message asking if [he] could "come through, " to which [Appellant] replied that he could. Detective Jason Taylor witnessed this exchange. [M.C.] was searched before proceeding to meet [Appellant].
Detective Taylor parked up the street from [Appellant's] house, and [M.C.] got out and met [Appellant] in the alley next to it. [M.C.] was familiar with [Appellant's] house, as that was the place where he and [Appellant] would conduct their business. [M.C.] and [Appellant] shook hands, at which point the cocaine was given to [M.C.]. Upon [Appellant's] request, [M.C.] then dropped the money on the ground. [M.C.] then gave the cocaine to Detective Taylor. According to [M.C.], this money was for drugs that were previously fronted to him, which he got arrested with. The next day, he met with [Appellant] again and paid him for the drugs he received on November 17.
On December 1, 2010, [M.C.] met with [Appellant] again. Trooper John Brumbaugh drove him to the meeting. [M.C.] was searched prior to meeting with [Appellant], and he had no contraband on him at the time. [M.C.] and [Appellant] met in the same alley as before, before entering [Appellant's] house. [M.C.] gave
[Appellant] $200.00 for cocaine. While they were inside, [M.C.] and [Appellant] snorted some cocaine. After enjoying a cigarette with [Appellant] outside, [M.C.] proceeded to Trooper Brumbaugh's car and gave him the cocaine.
On December 2, 2010, Detective Taylor and other police officers went to [Appellant's] residence. They delivered a search warrant and proceeded to search the home. [Appellant] was seen driving near his home, and was stopped and arrested. Detective Taylor searched
[Appellant], and he found $153.00 on him. Of that amount, $140.00 was the pre-recorded money that he had given to [M.C.].

Trial Court Opinion, 11/14/13, at 1-4 (citations to notes of testimony omitted).

Appellant was subsequently arrested and charged with the aforementioned crimes. A jury trial commenced on May 31, 2013, at the conclusion of which the jury entered its guilty verdicts. Following a sentencing hearing on August 7, 2012, the trial court sentenced Appellant to thirty-six to eighty-four months of imprisonment. Appellant filed a post-sentence motion on August 15, 2013, which the trial court denied. This appeal followed. Both Appellant and the trial court have complied with Pa.R.A.P. 1925.

Appellant raises the following issues for our review:
1) Did the trial court err by finding that [there] was sufficient evidence to support [Appellant's] conviction for criminal use of a communication facility?
2) Did the trial court err by not finding that the jury's guilty verdicts on the counts of unlawful delivery of a controlled substance were against the weight of the evidence?

Appellant's Brief at 4.

When reviewing a challenge to the sufficiency of the evidence, we are bound by the following:

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. 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.
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. It is not within the province of this Court to re-weigh the evidence and substitute our judgment for that of the fact-finder. The Commonwealth's burden may be met 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.

Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012).

Appellant argues that the evidence in this case was insufficient to support his conviction for criminal use of a communications facility.[2]Appellant's Brief at 7-8. The Crimes Code defines criminal use of a communications facility as follows:

A person commits a felony of the third degree if that person uses a communication facility to commit, cause or facilitate the commission or the attempt thereof of any crime which constitutes a felony under this title or under the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act. Every instance where the communication facility is utilized constitutes a separate offense under this section.

18 Pa.C.S.A. § 7512(a). Thus, to sustain a conviction for criminal use of a communication facility, the Commonwealth must prove beyond a reasonable doubt that: (1) the defendant knowingly and intentionally used a communication facility; (2) the defendant knowingly, intentionally or recklessly committed, caused, or facilitated an underlying felony; and (3) the underlying felony occurred. Commonwealth v. Moss, 852 A.2d 374, 382 (Pa. Super. 2004) (citations omitted).

Appellant specifically asserts that his conviction for criminal use of a communication facility was not supported by sufficient evidence because the Commonwealth failed to demonstrate that the text messages between him and M.C. were for the purpose of arranging a drug transaction. Appellant's Brief at 7-8. We disagree.

The Commonwealth presented the testimony of Detective Taylor, who stated that on November 17, 2010 and December 1, 2010, he was working with members of the Drug Task Force to set up a controlled buy between Appellant and M.C. N.T., 5/31/13, at 78-79. On November 17, 2010, Detective Taylor observed M.C. send a text message to Appellant, asking him if he could "come through, " to which Appellant responded "yes or yeah." Id. Police then searched M.C. to ensure that he had no drugs on his person, and provided M.C. with pre-recorded buy money. Id. at 81-89. The police then observed M.C. meet with Appellant and upon returning, M.C. provided the police with cocaine. Id. Detective Taylor's testimony was corroborated by M.C., Officer McGarity, Corporal Aldolini, and Trooper Brumbaugh. Id. at 29-39; 108-117; 126-135; 137-139. On December 2, 2010, police executed a search warrant for Appellant's residence, and upon Appellant's arrest, recovered pre-recorded buy money that had been provided to M.C.. Id. at 93-94.

We agree with the trial court that the record before us is sufficient to establish that Appellant knowingly and intentionally used a communication facility—in this case a telephone—to arrange the cocaine transactions with M.C., and that M.C. subsequently bought cocaine from Appellant. This evidence, viewed in the light most favorable to the Commonwealth as the verdict winner, is sufficient to sustain Appellant's conviction.

Appellant next argues that the verdict on the count of delivery of a controlled substance was against the weight of the evidence. Appellant's Brief at 9-11. In reviewing a weight of the evidence challenge, we are guided by the following principles: "The weight of the evidence is exclusively for the finder of fact, who is free to believe all, part, or none of the evidence, and to assess the credibility of the witnesses. ... An appellate court cannot substitute its judgment for that of the jury on issues of credibility." Commonwealth v. Palo, 24 A.3d 1050, 1055 (Pa. Super. 2011). "Thus, we may only reverse the lower court's verdict if it is so contrary to the evidence as to shock one's sense of justice. Moreover, where the trial court has ruled on the weight claim below, an appellate court's role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim." Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (citations omitted).

Appellant argues that the testimony of M.C. and the police officers as to the precise location of the cocaine transactions was inconsistent and not credible. Appellant's Brief at 9. Appellant references M.C.'s testimony that he met with Appellant at a side door of Appellant's house to buy the cocaine, in comparison to the testimony of Officer McGarity, who stated that Appellant met M.C. on the porch of Appellant's house. Id. Appellant argues that these inconsistences in the testimony impact the weight of the evidence and warrant a new trial. Id. Moreover, Appellant argues that M.C.'s testimony was not credible because he admitted that he was a cocaine user and that he used cocaine during one of the controlled buys with Appellant. Id.

It is well established that "[q]uestions concerning inconsistent testimony ... go to the credibility of the witnesses. [An appellate court] cannot substitute its judgment for that of the [fact finder] on issues of credibility." Commonwealth v. DeJesus, 860 A.2d 102, 107 (Pa. 2004). Here, we find no merit to Appellant's assertion that the verdicts were against the weight of the evidence, because the inconsistencies in the testimony of the Commonwealth's witnesses were minor and would not affect the jury's determination that Appellant sold cocaine. See Commonwealth v. Simmons, 662 A.2d 621 (Pa. 1995) (finding no merit to appellant's assertion that inconsistencies in the witnesses' testimony rendered it incredible, since the inaccuracies claimed were only minor and witness credibility is solely for the jury to determine); Commonwealth v. Boxley, 838 A.2d 608, 613 (Pa. 2003); Commonwealth v. Galloway, 434 A.2d 1220, 1222 (Pa. 1981) ("[v]ariances in testimony … go to the credibility of the witnesses [and] it is the function of the factfinder to pass upon the credibility of witnesses and the weight to be accorded the evidence[;] [t]he mere existence of conflict in the prosecution's evidence is not fatal to its case because the Commonwealth is not bound by everything its witnesses say and the jury can believe all, part or none of the testimony").

The jury, within its province, found credible the testimony of the Commonwealth's witnesses that Appellant engaged in cocaine transactions, and rejected Appellant's account of the events, in which Appellant claimed that he received money from M.C. not in exchange for cocaine, but as payment for a dirt bike and game that he had previously sold to M.C. N.T., at 5/31/13, at 170. Moreover, in addition to the testimony of Officer McGarity and M.C., the Commonwealth presented the testimony of Detective Taylor and Trooper Brumbaugh, who both corroborated that M.C. met with Appellant and gave Appellant money, that M.C. did not have any drugs on him prior to meeting with Appellant, and that upon returning from meeting with Appellant, M.C. provided the officers with cocaine. Id. at 72-98; 136-143. For the foregoing reasons, we find no abuse of the trial court's discretion in refusing to award a new trial based on the weight of the evidence.

Judgment of sentence affirmed.

Judgment Entered.

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