J-S11014-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

EZRA SPEAKS, JR.

Appellant No. 836 MDA 2014

Appeal from the Judgment of Sentence March 25, 2014

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s): CP-22-CR-0005425-2012

BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J. FILED APRIL 06, 2015

Appellant, Ezra Speaks, Jr., appeals from the judgment of sentence 

entered March 25, 2014, by the Honorable Richard A. Lewis, Court of 

Common Pleas of Dauphin County. We affirm Speaks’s convictions, but 

vacate the judgment of sentence and remand for re-sentencing. 

For a detailed account of the underlying facts and procedural history in 

this matter, we direct the reader to pages one through nine of the trial 

court’s September 11, 2014, memorandum opinion. Briefly, the police 

arrested Speaks after a confidential informant facilitated the controlled 

purchase from Speaks of crack cocaine. Thereafter, a jury convicted Speaks 

of delivery of a controlled substance,1conspiracy to commit delivery of a 

____________________________________________

1 35 P.S. 780-113(a)(30).
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controlled substance,2and criminal use of a communication facility.3 On 

March 25, 2014, the trial court sentenced Speaks to an aggregate term of 

three to six years’ imprisonment. Upon motion by the Commonwealth, the 

court imposed a mandatory $10,000.00 fine pursuant to 18 Pa.C.S.A. § 

7508(a)(2)(i), based upon the jury’s finding that Speaks had delivered an 

amount of cocaine in excess of two grams. Speaks filed a timely PostSentence Motion to Preserve Issues and Motion for New Trial or Arrest of 

Judgment, which the trial court denied following a hearing. This timely 

appeal followed. 

Speaks raises the following issues for our review.

1. Whether the trial court erred in sentencing appellant to an 

illegal sentence where it sentenced appeallant [sic] to a 

mandatory minimum sentence pursuant [sic] to [18 Pa.C.S.A. 

§ 7508(a)(2)(i)]?

2. Whether the trial court erred in denying appellant’s postsentence motion for arrest of judgment where the jury verdict 

of guilty on the charges of: unlawful deliver of a controlled 

substance, criminal conspiracy to unlawful delivery of a 

controlled substance and criminal use of a communication 

facility was against the weight of the evidence, because the 

Commonwealth failed to present testimony that an agent of 

the Attorney General’s office personally observed appellant 

deliver drugs for money; there was no video or photo 

surveillance that showed appellant made an unlawful delivery, 

and where the wiretap recording presented during trial was 

inaudible, such that a transcript needed to be provided to the 

jury so that they could understand what was being said?

____________________________________________

2 18 Pa.C.S.A. § 903. 

3 18 Pa.C.S.A. § 7512(a). 
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Appellant’s Brief at 5 (unnecessary capitalization and underlining removed). 

In his first issue on appeal, Speaks correctly notes that the trial court 

imposed a mandatory minimum sentence pursuant to 18 Pa.C.S.A. 

7508(a)(2)(i), based upon the jury’s finding that the cocaine involved in the 

transaction exceeded 2.0 grams. As the parties and trial court are by now 

aware, this Court has recently held that § 7508 is facially invalid pursuant to 

the Supreme Court of the United States’ decision in Alleyne v. United 

States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). See 

Commonwealth v. Fennell, 105 A.3d 13 (Pa. Super. 2014). The 

Commonwealth rightly concedes this issue in its brief. See Commonwealth’s 

Brief at 10. Furthermore, this issue cannot be waived. See 

Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en banc) 

(holding that violations of Alleyne could not be waived). We therefore 

vacate the judgment of sentence in its entirety and remand for resentencing. See Commonwealth v. Goldhammer, 517 A.2d 1280, 1283-

1284 (Pa. 1986).

Speaks additionally argues that the jury’s verdict was against the 

weight of the evidence presented. Our standard of review is as follows:

The finder of fact is the exclusive judge of the weight of the 

evidence as the fact finder is free to believe all, part, or none of 

the evidence presented and determines the credibility of the 

witnesses.

As an appellate court we cannot substitute our judgment for that 

of the finder of fact. Therefore, we will reverse a jury’s verdict 

and grant a new trial only where the verdict is so contrary to the 

evidence as to shock one’s sense of justice. A verdict is said to 
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be contrary to the evidence such that it shocks one’s sense of 

justice when “the figure of Justice totters on her pedestal,” or 

when “the jury’s verdict, at the time of its rendition, causes the 

trial judge to lose his breach, temporarily and causes him to 

almost fall from the bench, then it is truly shocking to the 

judicial conscience.”

Furthermore, 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. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013) 

(quoting Commonwealth v. Cruz, 919 A.2d 279, 281-82 (Pa. Super. 

2007)) (citations omitted). It is up to the jury to weigh the evidence, 

determine its credibility, and believe all, part, or none of it. See 

Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa. Super. 2003).

Instantly, the trial court specifically concluded that the “testimony of 

the parties who personally observed the events of August 21, 2012 and 

personally participated in the [controlled purchase] transaction is not so 

unreliable or contradictory so as to shock the court’s sense of justice and 

require the grant of a new trial.” Trial Court Opinion, 9/11/14 at 12. In 

light of the extensive corroborating evidence presented at trial and the 

testimony of the drug task force agents and of the confidential information 

who facilitated the drug transaction, as credited by the jury, we find no 

abuse of discretion in the trial court’s conclusion. See id. at 11-12. 

Accordingly, Speaks’s weight of the evidence claim merits no relief.
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Convictions affirmed. Judgment of sentence vacated. Case remanded 

for re-sentencing consistent with this memorandum. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/6/2015