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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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

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- 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 revi ew, 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 a s part of an investigation headed by Detective Vernail. The fi rst 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 o nto [Appellant]’s porch; [Appellant] was in the doorway a nd they talked for a minute. Then, the [C.I.] went back to Detective Vernail's car. Fontana had a good vantage point duri ng the

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* Retired Senior Judge assigned to the Superior Court.J-S58020- 14

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surveillance and was able to see [Appellant]’s face. Thi s 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 p orch, they briefly spoke, and then he handed [Appellant] money and she handed him a package and he went off the porch and ba ck to Detective Vernal. Each time, Fontana was conducting surveillance and thus he was able to positively identif y [Appellant]. Thomas Warren, the [C.I.], testified that he came into contact with Detective Jerry Vernail and agreed to coo perate with him in his efforts to combat drug trafficking in t he city of Greensburg. He knew of the East Pittsburgh street add ress as the residence of a drug distributor. He was aware of t his fact because his ex-girlfriend would purchase drugs from [App ellant]. According to Mr. Warren[,] the narcotic pill he was purchasing was called opana. The cost per pill was eith er $15.00 or $20.00. He made arrangements over the phone with [Appellant] to purchase the narcotic pills. Mr. Warre n was searched both before and after the purchases from [Appe llant]. He provided all the cash the detective gave him to [A ppellant] and he gave the detective all the opana that she had given to him on each occasion. The third and final transaction t ook place on June 3, 2009. Trooper Gregg Norton and Detective Jerry Vernail wer e 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] mone y 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 Poli ce 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 cita tions omitted).J-S58020- 14

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On December 9, 2011, following a jury trial, Appella nt was convicted of three counts of delivery of a controlled substance (De livery), 35 P.S. § 780 -113(a)(30). Appellant was sentenced on July 5, 2012, to an aggregate term of 2- 4 years’ incarceration. She d id not initially file a post-sentence motion or a direct appeal. However, on July 29, 201 3, 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 Appell ant’s post -sentence motion. Appellant then filed a timely notice of a ppeal on January 2, 2014. On January 27, 2014, App ellant 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 opinio n as d ispositive with respect to all the issues raised by Appellant in her Rul e 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 eviden ce, for the reason that there was insufficient evidence to support the guilty verdicts for the offense of [Deliver y] at counts 1, 2, and 3 of the Commonwealth’s information? II. Whether the tri al court erred by denying ... Appellant’s post-sentence motion for a new trial, for the reason th at the guilty verdicts for the offense of [Delivery] at counts 1, 2, and 3 of the Commonwealth’s information were cont rary to the weight of the evidence?J-S58020- 14

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III. Whether the trial court erred by denying ... Appellant’s post-sentence motion for a new trial, for the reason th at 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 again st ... 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 suffi cien cy 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 suppor t 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 offere d to support the verdict is in contradiction to the physical facts, in contravention to human experience and the laws of natu re, then the evidence is insufficient as a matter of law. When r eviewing a sufficiency claim[,] the court is required to view the e vidence 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 standa rd 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 c laim is merely a bald assertion that the evidence is insufficient:J-S58020- 14

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Appellant argues that the evidence which was presented a t trial was insufficient to establish that she delivered a contro lled substance, namely [o]pana pills, to the Confidential I nformant on any of the three (3) criminal incident dates in qu estion. It is maintained that the Commonwealth did not present suff icient evidence to sustain a conviction for the [Delivery] offe nses 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 o f 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 r ecord 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 agains t 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 wheth er the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evi dence presented, an appellate court will give the gravest con sideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verd ict is against the weight of the evidence. One of the least assailab le reasons for granting or denying a new trial is the lower cour t’s conviction that the verdict was or was not against the weight of t he evidence and that a new trial should be granted in t he interest of justice. However, the exercise of discretion by the trial court i n granting or denying a motion for a new trial based o n a challenge to the weight of the evidence is not unfette red. TheJ-S58020- 14

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propriety of the exercise of discretion in such an inst ance may be assessed by the appellate process when it is apparent that there was an abuse of that discretion. This court summarized th e 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, bu t where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that t he action is a result of partiality, prejudice, bias or ill will. Widmer , 744 A.2d 745, 753 (Pa. 2000) (internal citations o mitted). 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 w eight of the evidence to the degree that it shocks one’s sense of justice.” Id. Appellant’s weight claim amounts to no more than th e assertion that the jury should have believed her testimony over that of the Commonwealth’s witnesses. However, it has long been esta blished that [a] new trial should not be granted because of a mere conflict in testimony or because the trial judge on the same facts wo uld 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 j ury might have found for either party.J-S58020- 14

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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 asse rtion that the verdict was against the weight of the evidence. Accordingly, Ap pellant’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 abu sed its discretion when it denied Appellant’s motion for a new trial pr emised upon trial counsel’s ineffec tiveness. We are precluded from reviewing this claim u nder the general rule espoused by our Supreme Court in Commonwealth v. Grant , 813 A.2d 726 (Pa. 2002). Therein, our Supreme Co urt held that, “as a general rule, a petitioner should wait to raise cl aims 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 justi ce.” Holmes , 79 A.3d at 563. Second, with respect to other cases an d claims ... where the defendant seeks to litigate multiple or prolix claims of counsel ineffectiveness, including non-record-based claims, on post

verdict motions and direct appeal, we repose discretion i n the trial courts to entertain such claims, but only if (1) t here is good cause shown, and (2) the unitary review so indulged is p receded by the defendant's knowing and express waiver of hisJ-S58020- 14

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entitlement to seek PCRA [ 1 ] review from his conviction and sentence, including an express recognition that the waive r subjects further collateral review to the time and seria l petition restrictions of the PCRA. Holmes , 79 A.3d at 563-64 (footnote omitted). Appellant has not asserted the applicability of eithe r of these exceptions, nor is there anything in the record that suggests their applicability. Accordingly, we decline to address Appell ant’s ineffectiveness claim at this time. However, we do so without prejudi ce 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 Minim um 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 regardin g whether the facts adduced at trial supported the imposition of the mand atory 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).

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1 Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq.J-S58020- 14

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This indicates that the mandatory sentences imposed in thi s case were illegal. “A challenge to the legality of the sentence may be rai sed 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. § 75 08(a)(2)(ii).” Id. at 493. It was also apparent that “the facts that perm itted application of that mandatory sentence were not determined by the fa ct-finder nor proven beyond a reasonable doubt.” Id. Thus, the Thompson Court held that “the application of the mandatory minimum sentence ... constitu ted 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 prov en beyond a reasonable doubt. The Alleyne decision, therefore, renders those Pennsylvania mandatory minimum sentencing statutes that do not pertain to prior convictions constitutional ly infirm insofar as they permit a judge to automatically increase a defendant's sentence based on a preponderance of the ev idence standard.J-S58020- 14

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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 sentenci ng 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 ma y 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 impositio n of mandatory sentences because
Counts Two and Three of the Bill of Information invo lve two or more grams of a Schedule I or II narcotic thereby manda ting 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 C ommonwealth was referring to Section 7508(a)(2)(i), which reads as fol lows: (2) A person who is convicted of violating section 13(a) (14), (30) or (37) of The Controlled Substance, Drug, Devic e 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 mix ture containing the substance involved is at least 2.0 gramsJ-S58020- 14

- 11 - and less than ten grams; two years in prison and a fine of $5,000 or such larger amount as is sufficient to exha ust the assets utilized in and the proceeds from the illega l 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 r equired 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 apparen t from the record that the jury was not asked to determine whether the Commo nwealth met this burden, nor is there any evidence that Appellant conce ded 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

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/26/2014