MEMORANDUM
KUNSELMAN, J.
Kenneth
Terry appeals from the judgment of sentence entered following
his convictions for four counts of possession with intent to
deliver and one count of possession of drug paraphernalia. 35
P.S. § 780-113(a)(30), (a)(32). We affirm the
convictions but remand for the trial court to correct a
partially illegal sentence.
The
trial court recounted the factual history of this case as
follows:
On May 26, 2021, law enforcement for Lawrence County was
contacted by the management of . . . an extended stay hotel
in Union Township, Lawrence County, Pennsylvania. The
management reported possible drug-related activity on the
premises. The management became suspicious upon witnessing a
large amount of foot traffic coming and going, specifically
from Rooms 110, 111, and 202. Records supplied by the
management indicated that these rooms were rented by
individuals giving the names Bob Marley, Giovanni Johnson
and Angela Ragen, respectively. The rooms were paid for with
cash.
Detective Richard Ryhal viewed historical surveillance and
conducted live surveillance from the view of the camera
placed in the hallway of Rooms 110 and 111, the doors to
which were located across from each other. As a result of his
surveillance
Detective Ryhal observed multiple individuals arriving at
Room 111, entering, staying inside for a few minutes, and
then leaving Room 111 and the hotel. Further, a black male
was observed walking between Rooms 110 and 111 between the
visits of the individuals. The black male was seen carrying
various items, including ice and cooking utensils. As
Detective Ryhal testified, the totality of these observations
is consistent with an indication of narcotics dealing. A
search warrant was consequently applied for and granted at
approximately 5:30 P.M. on May 26, 2021.
At approximately 6:45 P.M. on May 26, 2021, law enforcement
made entry into the hallway of Rooms 110 and 111 at [the
hotel] in order to execute the aforementioned search warrant.
Simultaneously, [Terry] and his co-defendant [Keyon Lee]
appeared in the doorway of Room 111 and spotted law
enforcement entering. [Terry] and [Lee] then attempted to
flee down the opposite end of the "L"-shaped
hallway. Unbeknownst to [Terry], law enforcement had entered
on both ends of the hallway, and [Terry] and [Lee] were
quickly detained. A variety of bills were observed being
discarded as the duo fled, however neither law enforcement
nor the surveillance footage could definitively attribute the
abandoned currency specifically to [Terry] or [Lee]. On
[Terry's] person at the time of his arrest was $28.00 in
cash, a cell phone, a handheld video game player, and three
room keys (two for Room 202, one for Room 111). Paperwork
containing [Terry's] name was discovered in Room 202,
however this was the only property specifically attributable
to [Terry] from the three rooms searched.
Inside Room 110, law enforcement recovered 56.3 gross grams
of suspected crack cocaine; $51,836.00 in cash; a cell phone;
a smart watch; a bag of suspected marijuana; and two spoons
covered in suspected cocaine residue.
Inside Room 111, law enforcement recovered three bags of
suspected heroin, totaling 64 gross grams; two bags of
suspected crack cocaine, totaling 44.2 grams; a digital weigh
scale; a handgun; a bag of suspected marijuana; and multiple
cell phones.
Inside Room 202, law enforcement recovered a blender with
suspected drug residue; a foil pan; $60,000.00 in cash; and
the aforementioned paperwork containing [Terry's] name.
Trial Court Opinion, 3/1/23, at 4-6.
The
case proceeded to trial beginning June 14, 2022. Relevantly,
the hotel property manager testified that Terry had
accompanied two of the other individuals when they paid for
the hotel rooms with cash and frequented the hotel
"[j]ust about every day" for four weeks before his
arrest. N.T., 6/14/22, at 28. For a week or two, Terry would
go between the three rooms with the same McDonald's bag
"multiple times a day." Id. at 29-30.
In his
closing argument, Terry urged the jury to consider
deficiencies in the investigation:
Think about this: We are one year later -- over one year
later, and we don't have anybody coming forth saying, Mr.
Terry sold me drugs on that day. We don't have a
confidential informant saying this is what happened. We
don't have, prior to them making their arrest, them
setting up any undercover officer to see what was happening.
We don't have any controlled buys to see if Mr. Terry was
an individual who was selling any controlled substances.
We don't have -- we have the suspicion, but we have
people who are leaving, we don't have the
officers stopping, which, by the way, it's not
just Detective Ryhal and Detective Ferrucci, it's the
Lawrence County Drug Task Force. It's officers from
Union. There are multiple officers available. None of
them stopping and asking, hey, what's going on? None of
them saying, some guy with dreads sold me drugs. We
got none of that.
We don't have a K-9 officer walking through the parking
lot, confirming that -- having a hit that this person who
just walked in there when Mr. Terry was alone now has drugs
on him. We don't have anything of that nature. It's
one year later. We're at trial. They don't have the
evidence, because it's not there.
N.T., 6/17/22, at 12-13 (emphasis added).
The
assistant district attorney objected, stating that the
parties had agreed not to address whether task force members
spoke with anyone who
visited the hotel room where the drugs were sold.
Id. at 16-17.[1] On the Commonwealth's motion, the
trial court struck the objected-to portion of the argument
and provided the following instruction:
I'm going to ask the jury to strike from your
consideration the comments of [trial counsel] that the
Lawrence County Drug Task Force did not speak to any of the
individuals that went into Room 111 that day and received
information that [Terry] was dealing drugs. So if you'll
just strike that from your consideration, then, and we'll
hear from [the Commonwealth].
Id. at 22. Although Terry objected to the curative
instruction, he did not move for a mistrial.
The
jury convicted Terry of all five charges. On August 19, 2022,
Terry received his sentence, an aggregate of 8 to 16 years of
imprisonment. The trial court amended the restitution amount
of Terry's sentence on September 6, 2022. Terry filed
post-sentence motions, which the trial court denied on
January 11, 2023.
On
January 18, 2023, Terry filed a notice of appeal. Terry and
the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925. The Commonwealth did not file an appellate
brief.
Terry
challenges four actions of the trial court:
I. Whether the trial court erred and abused its discretion in
denying [Terry's] post-sentence motion, by finding that
the jury's verdict was based on evidence sufficient to
sustain his convictions beyond a reasonable doubt?
II. Whether the trial court erred and abused its discretion
in failing to declare a mistrial, sua sponte, upon
the [occurrence] of what [Terry] alleges was a Brady
violation?
III. Whether the trial court erred and abused its discretion
in sentencing [Terry] consecutively, rather than
concurrently, resulting in an unreasonable and excessive
sentence?
IV. Whether the trial court erred and abused its discretion
in denying [Terry's] post-sentence motion, by finding
that the jury's verdict was not against the weight of
[the] evidence?
Terry's Brief at 8-9 (capitalization omitted).
Terry
first challenges the sufficiency of the evidence at all
counts. He argues that his mere presence in a room with
drugs, as well as his attempt to flee when the police
arrived, are legally insufficient to prove that he possessed
the drugs and paraphernalia. He notes that the Commonwealth
did not call the other people in the hotel to testify.
Rather, Terry contends that the only support for his
involvement in the drug distribution is based on speculation
and conjecture. Therefore, he concludes that the trial court
erred in denying his post-sentence motion for judgment of
acquittal.
Whether sufficient evidence exists to support the verdict is
a question of law; our standard of review is de novo
and our scope of review is plenary. We review the evidence in
the light most favorable to the verdict winner to determine
whether there is sufficient evidence to allow the factfinder
to find every element of a crime beyond a reasonable doubt.
Commonwealth v. Bathurst, 288 A.3d 492, 500 (Pa.
Super. 2023) (quoting Commonwealth v. Tejada, 107
A.3d 788, 792 (Pa. Super. 2015) (brackets omitted).
In applying the above test, we may not weigh the evidence and
substitute our judgment for that of the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant's guilt may be resolved by the fact-finder
unless the evidence is so weak and inconclusive that as a
matter of law, no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain its
burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial evidence.
Moreover, in applying the above test, the entire record must
be evaluated and all evidence actually received must be
considered. Finally, the factfinder,
...
