J-S58020-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

JODY L. KENNY, 

 Appellant No. 71 WDA 2014 

Appeal from the Judgment of Sentence Entered July 5, 2012

In the Court of Common Pleas of Westmoreland County 

Criminal Division at No(s): CP-65-CR-0003920-2010 

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

 

MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 26, 2014 

 Appellant, Jody L. Kenny, appeals from the judgment of sentence of 2-

4 years’ incarceration imposed following her conviction on three counts of 

delivery of a controlled substance. After careful review, we vacate the 

judgment of sentence and remand for resentencing. 

 The trial court summarized the facts adduced at trial as follows: 

Detective Fontana of the Greensburg Police Department 

testified that he conducted surveillance on a residence as part of 

an investigation headed by Detective Vernail. The first 

transaction took place on May 6, 2009. The occupants of a first 

floor apartment located at 135 East Pittsburgh Street were 

[Appellant] and her Husband. The detective watched as the 

confidential informant [“C.I.”], Mr. Warren, walked onto 

[Appellant]’s porch; [Appellant] was in the doorway and they 

talked for a minute. Then, the [C.I.] went back to Detective 

Vernail's car. Fontana had a good vantage point during the 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court.
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surveillance and was able to see [Appellant]’s face. This type of 

encounter took place on three separate occasions and all of the 

transactions occurred under surveillance ... and at the same 

location. Essentially, the [C.I.] went up onto the porch, they 

briefly spoke, and then he handed [Appellant] money and she 

handed him a package and he went off the porch and back to 

Detective Vernal. Each time, Fontana was conducting 

surveillance and thus he was able to positively identify 

[Appellant]. 

Thomas Warren, the [C.I.], testified that he came into

contact with Detective Jerry Vernail and agreed to cooperate 

with him in his efforts to combat drug trafficking in the city of 

Greensburg. He knew of the East Pittsburgh street address as 

the residence of a drug distributor. He was aware of this fact 

because his ex-girlfriend would purchase drugs from [Appellant]. 

According to Mr. Warren[,] the narcotic pill he was 

purchasing was called opana. The cost per pill was either $15.00 

or $20.00. He made arrangements over the phone with

[Appellant] to purchase the narcotic pills. Mr. Warren was 

searched both before and after the purchases from [Appellant]. 

He provided all the cash the detective gave him to [Appellant] 

and he gave the detective all the opana that she had given to 

him on each occasion. The third and final transaction took place 

on June 3, 2009. 

Trooper Gregg Norton and Detective Jerry Vernail were 

involved in surveillance of the three drug transactions. Each 

time the same scenario unfolded. The [C.I.] would go up onto 

[Appellant]’s porch. Then he handed [Appellant] money and she 

handed “something” back; that something being the opana 

narcotic pills. 

Analysis of the pills was conducted by Maxine Oleyar, a 

Forensic Scientist II with the Pennsylvania State Police Crime 

Lab at Greensburg. Her analysis of the pills indicated that they 

were oxymorphone, a Schedule II Controlled Substance (the 

generic term being opana). 

Trial Court Opinion, 12/4/13, at 2-4 (internal citations omitted). 
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On December 9, 2011, following a jury trial, Appellant was convicted 

of three counts of delivery of a controlled substance (Delivery), 35 P.S. § 

780-113(a)(30). Appellant was sentenced on July 5, 2012, to an aggregate 

term of 2-4 years’ incarceration. She did not initially file a post-sentence 

motion or a direct appeal. However, on July 29, 2013, the trial court 

entered an order reinstating her direct appeal rights nunc pro tunc. 

Appellant then filed a post-sentence motion on August 8, 2013. That motion 

was denied on December 4, 2013. The trial court also issued an opinion on 

that date setting forth its reasons for dismissing Appellant’s post-sentence 

motion. Appellant then filed a timely notice of appeal on January 2, 2014. 

 On January 27, 2014, Appellant complied with the trial court’s order 

for a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The 

trial court then issued an order on January 31, 2014, directing this Court’s 

attention to the trial court’s December 4, 2013 opinion as dispositive with 

respect to all the issues raised by Appellant in her Rule 1925(b) statement. 

Appellant now presents the following questions for our review: 

I. Whether the trial court erred by denying ... Appellant’s 

post-sentence motion for a judgment of acquittal based 

upon a verdict contrary to the sufficiency of the evidence, 

for the reason that there was insufficient evidence to 

support the guilty verdicts for the offense of [Delivery] at 

counts 1, 2, and 3 of the Commonwealth’s information?

II. Whether the trial court erred by denying ... Appellant’s 

post-sentence motion for a new trial, for the reason that 

the guilty verdicts for the offense of [Delivery] at counts 1, 

2, and 3 of the Commonwealth’s information were contrary 

to the weight of the evidence? 
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III. Whether the trial court erred by denying ... Appellant’s 

post-sentence motion for a new trial, for the reason that 

trial counsel was ineffective by failing to move for a 

mistrial on the basis that certain members of the jury 

demonstrated that they were biased against ... Appellant?

Appellant’s Brief at 7-8. We will address these claims ad seriatum, and 

conclude our review with a sua sponte examination of the legality of 

Appellant’s sentence. 

Sufficiency 

Appellant’s first claim presents a challenge to the sufficiency of the 

evidence underlying her conviction for three counts of Delivery. Our 

standard of review of sufficiency claims is well-settled: 

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 her brief, Appellant cites the appropriate standard of review, as well 

as the statute defining her Delivery offenses, 35 P.S. § 780-113(a)(30). 

However, her argument in support of the sufficiency claim is merely a bald 

assertion that the evidence is insufficient: 
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Appellant argues that the evidence which was presented at trial 

was insufficient to establish that she delivered a controlled 

substance, namely [o]pana pills, to the Confidential Informant 

on any of the three (3) criminal incident dates in question. It is 

maintained that the Commonwealth did not present sufficient 

evidence to sustain a conviction for the [Delivery] offenses 

charged in Counts 1, 2 and 3 of the Commonwealth's 

Information. 

Appellant’s Brief at 13-14. 

 This is the functional equivalent of no argument at all. Moreover, 

Appellant does not cite to any authority in support of the proposition that the 

evidence was insufficient in this case, see Pa.R.A.P. 2119(b) (“Citation of 

authorities”), nor is there any reference made to the record in support of her 

claim, see Pa.R.A.P. 2119(c) (“Reference to record”). Accordingly, 

Appellant’s sufficiency claim is meritless. 

Weight of the Evidence 

Appellant also asserts that the jury’s verdict was against the weight of 

the evidence. 

Appellate review of a weight claim is a review of the exercise 

of discretion, not of the underlying question of whether the 

verdict is against the weight of the evidence. Because the trial 

judge has had the opportunity to hear and see the evidence 

presented, an appellate court will give the gravest consideration 

to the findings and reasons advanced by the trial judge when 

reviewing a trial court's determination that the verdict is against 

the weight of the evidence. One of the least assailable reasons 

for granting or denying a new trial is the lower court’s conviction 

that the verdict was or was not against the weight of the 

evidence and that a new trial should be granted in the interest of 

justice. 

However, the exercise of discretion by the trial court in 

granting or denying a motion for a new trial based on a 

challenge to the weight of the evidence is not unfettered. The 
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propriety of the exercise of discretion in such an instance may be 

assessed by the appellate process when it is apparent that there 

was an abuse of that discretion. This court summarized the 

limits of discretion as follows: 

The term ‘discretion’ imports the exercise of judgment,

wisdom and skill so as to reach a dispassionate conclusion,

within the framework of the law, and is not exercised for 

the purpose of giving effect to the will of the judge. 

Discretion must be exercised on the foundation of reason, 

as opposed to prejudice, personal motivations, caprice or

arbitrary actions. Discretion is abused when the course 

pursued represents not merely an error of judgment, but 

where the judgment is manifestly unreasonable or where

the law is not applied or where the record shows that the 

action is a result of partiality, prejudice, bias or ill will. 

Widmer, 744 A.2d 745, 753 (Pa. 2000) (internal citations omitted). 

Appellant’s weight claim is premised upon the fact that she testified 

that she never sold her medications to the C.I., Thomas Warren. Appellant’s 

Brief at 14. She also testified that “she did not get along with Mr. Warren, 

and that it would have been possible for him to have stolen some of her pills 

on the occasions when he visited her residence. Id. at 15. Thus, Appellant 

argues, “the [j]ury’s verdict of guilty was against the weight of the evidence 

to the degree that it shocks one’s sense of justice.” Id. 

Appellant’s weight claim amounts to no more than the assertion that 

the jury should have believed her testimony over that of the 

Commonwealth’s witnesses. However, it has long been established that 

[a] new trial should not be granted because of a mere conflict in 

testimony or because the trial judge on the same facts would 

have arrived at a different conclusion. Nor should it ordinarily be 

granted on the ground that the verdict was against the weight of 

the evidence where the evidence is conflicting and the jury might 

have found for either party. 
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Eisert v. Jones, 182 A.2d 717, 720 (Pa. 1962). 

We ascertain no abuse of discretion in the trial court’s denying of 

Appellant’s motion for a new trial based upon her assertion that the verdict 

was against the weight of the evidence. Accordingly, Appellant’s weight of 

the evidence claim does not entitle her to relief. 

Ineffective Assistance of Counsel 

Appellant’s third claim posits that the trial court abused its discretion 

when it denied Appellant’s motion for a new trial premised upon trial 

counsel’s ineffectiveness. We are precluded from reviewing this claim under 

the general rule espoused by our Supreme Court in Commonwealth v. 

Grant, 813 A.2d 726 (Pa. 2002). Therein, our Supreme Court held that, “as 

a general rule, a petitioner should wait to raise claims of ineffective 

assistance of trial counsel until collateral review.” Id. at 738. Recently, in 

Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme Court 

recognized the existence of only two exceptions to the rule announced in 

Grant. First, a trial court may address ineffectiveness claims where such 

claims are “apparent from the record and meritorious to the extent that 

immediate consideration best serves the interests of justice.” Holmes, 79 

A.3d at 563. Second, 

with respect to other cases and claims ... where the defendant 

seeks to litigate multiple or prolix claims of counsel 

ineffectiveness, including non-record-based claims, on postverdict motions and direct appeal, we repose discretion in the 

trial courts to entertain such claims, but only if (1) there is good 

cause shown, and (2) the unitary review so indulged is preceded 

by the defendant's knowing and express waiver of his 
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entitlement to seek PCRA[1]

 review from his conviction and 

sentence, including an express recognition that the waiver 

subjects further collateral review to the time and serial petition 

restrictions of the PCRA. 

Holmes, 79 A.3d at 563-64 (footnote omitted). 

 Appellant has not asserted the applicability of either of these 

exceptions, nor is there anything in the record that suggests their 

applicability. Accordingly, we decline to address Appellant’s ineffectiveness 

claim at this time. However, we do so without prejudice to her ability to 

raise it in a future PCRA petition. 

Illegal Sentence 

Following Appellant’s conviction for three counts of Delivery in this 

case, the Commonwealth sought imposition of mandatory minimum 

sentences for two of those counts pursuant to 18 Pa.C.S. § 7508. See

Commonwealth’s Notice to Defendant of Mandatory Minimum Sentence 

(“Notice”), 1/17/12, at 1-2. The trial court indicates that these mandatory

minimums were applied in forming Appellant’s sentence. TCO, at 1. From 

our review of the trial transcripts, we can ascertain that the jury empaneled 

in this case did not make the determination regarding whether the facts 

adduced at trial supported the imposition of the mandatory minimum 

sentences imposed by the court. See N.T., 12/8/11-12/9/11, at 198 

(wherein the trial court described the content of the verdict slip to the jury). 

____________________________________________ 

1

 Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq.
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This indicates that the mandatory sentences imposed in this case were 

illegal. 

“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). Moreover, “[a]n illegal sentence ... may be 

reviewed sua sponte by this Court.” Commonwealth v. Archer, 722 A.2d 

203, 209 (Pa. Super. 1998). 

 In Commonwealth v. Thompson, 93 A.3d 478 (Pa. Super. 2014), 

this Court discovered that the record “revealed that the trial court imposed a 

mandatory minimum sentence pursuant to 18 Pa.C.S. § 7508(a)(2)(ii).” Id.

at 493. It was also apparent that “the facts that permitted application of 

that mandatory sentence were not determined by the fact-finder nor proven 

beyond a reasonable doubt.” Id. Thus, the Thompson Court held that “the 

application of the mandatory minimum sentence ... constituted an illegal 

sentence in violation of” Alleyne v. United States, 133 S.Ct. 2151 (2013). 

According to the Alleyne Court, a fact that increases the 

sentencing floor is an element of the crime. Thus, it ruled that 

facts that mandatorily increase the range of penalties for a 

defendant must be submitted to a fact-finder and proven beyond 

a reasonable doubt. The Alleyne decision, therefore, renders 

those Pennsylvania mandatory minimum sentencing statutes 

that do not pertain to prior convictions constitutionally infirm 

insofar as they permit a judge to automatically increase a 

defendant's sentence based on a preponderance of the evidence 

standard. 
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Commonwealth v. Watley, 81 A.3d 108, 117 (Pa. Super. 2013) (footnote 

omitted). 

 In Watley, we held that Alleyne 

necessarily implicated Pennsylvania's legality of sentencing 

construct since it held that it is improper to sentence a person to 

a mandatory minimum sentence absent a jury's finding of facts 

that support the mandatory sentence. Application of a 

mandatory minimum sentence gives rise to illegal sentence

concerns, even where the sentence is within the statutory limits. 

Legality of sentence questions are not waivable and may be 

raised sua sponte by this Court. 

Watley, 81 A.3d at 117–18 (footnotes and citations omitted). 

 In the present case, the Commonwealth sought imposition of 

mandatory sentences because 

Counts Two and Three of the Bill of Information involve two or 

more grams of a Schedule I or II narcotic thereby mandating a 

minimum period of incarceration of two years in a state

correctional institution and a five thousand dollar ($5,000.00) 

fine pursuant to Section 7508 of the Crimes Code. 

Notice, at 1-2. 

 Although the Commonwealth failed to cite the specific provision of 18 

Pa.C.S. § 7508 in the Notice, we can deduce that the Commonwealth was 

referring to Section 7508(a)(2)(i), which reads as follows: 

(2) A person who is convicted of violating section 13(a)(14), 

(30) or (37) of The Controlled Substance, Drug, Device and 

Cosmetic Act where the controlled substance or a mixture 

containing it is classified in Schedule I or Schedule II under 

section 4 of that act and is a narcotic drug shall, upon 

conviction, be sentenced to a mandatory minimum term of

imprisonment and a fine as set forth in this subsection: 

(i) when the aggregate weight of the compound or mixture 

containing the substance involved is at least 2.0 grams
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and less than ten grams; two years in prison and a fine of 

$5,000 or such larger amount as is sufficient to exhaust 

the assets utilized in and the proceeds from the illegal 

activity; ...

18 Pa.C.S. § 7508(a)(2)(i). 

 Thus, synthesizing the dictates of Alleyne with the terms of Section 

7508(a)(2)(i), in order to impose a mandatory sentence of two years’ 

incarceration and a $5000 fine, the Commonwealth was required to prove to 

the jury, beyond a reasonable doubt, that Appellant sold at least 2.0 grams 

of a Schedule I or Schedule II narcotic. It is apparent from the record that 

the jury was not asked to determine whether the Commonwealth met this 

burden, nor is there any evidence that Appellant conceded the matter. 

Consequently, the imposition of the mandatory sentence in this case was 

illegal under the dictates of Alleyne. Accordingly, we vacate Appellant’s 

sentence and remand this case for resentencing. 

 Judgment of sentence vacated. Case remanded for resentencing 

consistent with this memorandum. Jurisdiction relinquished. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/26/2014