HomeMy WebLinkAboutCP-21-CR-0003256-2015
COMMONWEALTH
v.
IN THE COURT OF COMMON PLEAS OF
THE NINTH JUDICIAL DISTRICT
COREY D. PALSON CP-21-CR-3256-2015
IN RE: OPINION PURSUANT Pa.R.A.P. 1925(a)
PLACEY, C.P.J. 17 APRIL 2018
PROCEDURAL HISTORY
Defendant was convicted by a jury of three (3) counts of Drug Delivery Resulting
12
in Death, three (3) counts of Possession with Intent to Deliver Heroin, and one count
3
of Conspiracy to Possession with Intent to Deliver Heroin on September 23, 2016. An
aggregated sentence of 378 to 756 months on the first counts, which involved three
deaths, was imposed on December 20, 2016. A petition in arrest of judgment,
modification of sentence, and request for a new trial was filed on December 21, 2016, to
which the Commonwealth filed an Answer on January 6, 2017. Defendant’s petition
was denied on January 9, 2017. Post trial counsel was appointed by the President
Judge on February 14, 2017. Counsel filed a request to argue the post-sentence
motions nunc pro tunc. Counsel then filed an amended post-sentence motion nunc pro
1
18 Pa. C.S. § 2506, a felony one.
2
35 Pa. C.S. § 780-113(a)(30), an ungraded felony.
3
18 Pa. C.S. § 903, a felony one.
CR-3256-2015
tunc on May 31, 2017, to which the Commonwealth responded on June 15, 2017. In
June 2017, the court appointed counsel was withdrawn due to a conflict of interest and
new appeal counsel was appointed on June 14, 2017. New counsel was given an
additional ninety (90) days to file an amended post-sentence motion to which the
Commonwealth was given an opportunity to respond. An Order denying the post-
sentence motion by operation-of-law was entered on December 14, 2017.
Defendant filed Notice of Appeal with the Superior Court on January 11, 2018.
Upon receipt of the Notice of Appeal, Defendant, now Appellant, was directed to file
Concise Statement of Errors on January 30, 2018. Thirteen (13) averments of error
were filed on February 20, 2018.
1. Whether the evidence presented at trial was sufficient to convict Appellant
of drug delivery resulting in death (Lorraine Avery).
2. Whether the evidence presented at trial was sufficient to convict Appellant
of drug delivery resulting in death (Michael Sullivan).
3. Whether the evidence presented at trial was sufficient to convict Appellant
of Drug delivery resulting in death (Nicole Tubbs).
4. Whether the evidence presented at trial was sufficient to convict Appellant
of unlawful possession of a controlled substance with intent \[to\] deliver.
(sic)
5. Whether the evidence presented at trial was sufficient to convict Appellant
of criminal conspiracy for unlawful possession of a controlled substance
with intent \[to\] deliver.(sic)
6. Whether the conviction for drug delivery resulting in death was against the
weight of the evidence (Lorraine Avery).
7. Whether the conviction for drug delivery resulting in death was against the
weight of the evidence (Michael Sullivan).
8. Whether the conviction for drug delivery resulting in death was against the
weight of the evidence (Nicole Tubbs).
2
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9. Whether the Court erred when it sustained the Commonwealth’s objection
to defense counsel’s attempt to enter a police report which names an
alternative suspect to the charge of a delivery resulting in the death of
Nicole Tubbs.
10. Whether the Court erred when it denied defense counsel’s request for
Judgment of Verdict of Acquittal.
11. Whether the Court erred when it allowed the Commonwealth to amend
Count III of the Information to read criminal conspiracy to deliver heroin
rather than cocaine as was charged and listed in the Information filed by
the Commonwealth.
12. Whether 18 Pa.C.S. § 2506 as applied to this matter is unconstitutionally
vague.
13. Whether the Court abused its discretion by imposing an aggravated
sentence for each of the three convictions for drug delivery.
This opinion is in support of the convictions of the jury and subsequent sentence.
FACTS
1. Lorraine Avery (Avery) died from a drug overdose that was reported to the
4
Middlesex Township Police on May 2, 2015.
2. At the death scene, police found, inter alia, empty glassine bags of heroin
5
that were stamped “M*O*B.”
3. Michael Sullivan (Sullivan) died from a drug overdose that was reported to
6
the Hampden Township Police on May 14, 2015.
4. At the death scene police found inter alia, empty glassine bags all marked
7
M*O*B.
4
Affidavit of Probable Cause.
5
Id.
6
Id.
7
Id.
3
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5. Nicole Tubbs (Tubbs) died in a car crash in Silver Spring Township on
8
June 6, 2015.
6. At the incident scene police found, inter alia, unused bags of heroin in Ms.
Tubbs’ purse, which was found in the vehicle she was operating that were
stamped M*O*B and various loose but empty glassine bags also stamped
M*O*B in the vehicle’s passenger area.
7. The instant case came out of an Indictment from the Eleventh Cumberland
9
County Investigating Grand Jury at Notice No. 11-15-02.
The facts from the jury trial conducted between September 20, 2016 and
September 23, 2016, are as follows:
8. Ms. Avery’s sister testified that she and Ms. Avery lived with their mother,
10
sister’s child, and Ms. Avery’s two children.
11
9. Ms. Avery died on May 1, 2015.
10. Sister was awakened in the early hours of May 2, 2015, by the sounds of
12
Ms. Avery’s daughter attempting to awaken her mother.
11. When sister was able to have Ms. Avery’s daughter unlock the bedroom
door, sister saw Ms. Avery on the floor, not moving, thought she was
dead, and called 911.
8
Id.
9
The trial court reviewed in advance of the jury trial Defendant’s Writ of Habeas Corpus that sought the
dismissal of all charges based on a review of the grand jury transcripts. The Writ was denied.
10
Transcript of Proceedings, Jury Trial Volume I at page 49. Hereinafter, N.T., v. ___ at p. __.
11
N. T., v. I at p. 51.
12
Id.
4
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12. Sister, aware of Ms. Avery’s addiction to heroin, noticed “baggies left on a
13
basket that was upside down on the floor beside her.”
st
13. Ms. Avery had obtained a ride from a friend in the evening of May 1,
whom she asked to drive her to meet a person who was going to lend her
money, and that first they would be dropping this person off somewhere
14
along the way as part of the shared ride.
14. The person that Ms. Avery met with was Jesse Blais, a person who the
15
driver had not previously met.
15. Jesse Blais is a charged Codefendant in the deaths of Ms. Avery and Mr.
16
Sullivan.
16. Ms. Avery and Codefendant were talking from the front to the back seat
and the last thing Codefendant said to Ms. Avery as noted by the driver
17
was, “take one and a half, not two.”
17. The Middlesex Township Police were summoned to the residence of Ms.
Avery, and the sergeant who responded to the call described in detail how
18
Ms. Avery was found in her room and the conditions of that room.
18. The sergeant described the items found on scene to include a zip lock
type of baggie, a white envelope with jagged edge, and blue envelopes
19
with blue markings on them that read M*O*B.
13
N. T., v. I at p. 54.
14
N. T., v. I at p. 71.
15
Id.
16
CR-3116-2015 and CR-2778-2015.
17
N. T., v. I at p. 71.
18
N. T., v. I at p. 83 and 85.
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19. Also found on scene was a hypodermic needle by Ms. Avery’s left hand,
20
another needle by her left foot, and a metal spoon.
20. The police conducted an investigation into the source of this heroin,
specifically the brand M*O*B, as based on the sergeant’s experience, the
21
branding of the product is a dealer’s marketing tool.
21. The sergeant was given two (2) unopened M*O*B bags that were found
22
after the police left the residence in Ms. Avery’s purse by her sister.
22. Mr. Sullivan’s father found his son on May 14, 2015, in his bedroom, on
23
the floor, with his skin color a bluish grey, and began CPR.
23. Father gave police permission to search his home and his son’s cell
24
phone, which was on Father’s cell phone plan.
24. The responding Hampden Township Police officer, after assisting the
emergency medical personnel at the scene, found a hypodermic needle
25
with a substance loaded inside of it.
25. The officer also found a spoon, part of a Q-tip, along with empty light blue
26
glassine baggies on scene.
27
26. The blue glassine baggies also had a blue stamp of M*O*B.
19
N. T., v. I at p. 85.
20
N. T., v. I at P. 85-86.
21
N. T., v. I at p. 87.
22
N. T., v. I at p. 100.
23
N. T., v. I at p. 105, 109.
24
N. T., v. I at p. 111.
25
N. T., v. I at p. 120.
26
N. T., v. I at p. 122.
27
N. T., v. I at p. 123.
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27. A Hampden Township Police detective, who is also a detective with the
Cumberland County Drug Task Force, and who was assigned the
28
Hampden investigation, detailed the nature of heroin sales and use.
28. In review of the cell phone call logs, the detective found calls between Mr.
29
Sullivan and Jesse Blais.
29. The detective described the fifteen (15) glassine bags and empty packets
30
of M*O*B heroin found in the Sullivan home death scene.
30. The detective further described that upon testing, the bag marked M*O*B
31
had heroin in it, a scheduled I controlled substance.
31. A patrol sergeant with Silver Spring Township was called to the scene of a
32
traffic crash on June 6, 2015, just after 9:00 in the morning.
32. This was a three (3) vehicle incident with Ms. Tubbs’ vehicle being
33
designated as Unit 1.
33. Ms. Tubbs’ vehicle struck the trailer of a tractor-trailer combination that
34
was stopped waiting to make a left turn in the left turn lane.
34. The seasoned veteran patrol sergeant, who is also a drug recognition
expert, described the incident as “probably one of the worst vehicles I’ve
35
seen destroyed from a crash.
28
N. T., v. I at p. 130-36.
29
N. T., v. I at p. 140.
30
N. T., v. I at p. 144.
31
N. T., v. I at p. 147-48.
32
N. T., v. II at p. 9.
33
N. T., v. II at p. 14. This designates the vehicle driver the police deemed to be the at fault operator.
34
N. T., v. II at p. 18-20.
35
N. T., v. II at p. 32.
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35. The sergeant found a pedicure kit inside Unit 1 and inside of it there was a
36
single blue glassine bag that was torn open.
36. There was a “bundle” of what the sergeant believed to be heroin that had
a M*O*B stamp on it, believed to be 8 baggies wrapped with a rubber
37
band, and a short three to four inch straw with some residue inside of it.
37. An accident reconstructionist with the Pennsylvania State Police testified
that Ms. Tubbs’ speed was 77 mph and accelerating at the time of
38
impact.
39
38. Further, Ms. Tubbs’ did no braking immediately prior to impact.
39. Ms. Tubbs’ father described his daughter as living in Newville with the
40
Defendant for four to six months prior to her death in June 2016.
40. A forensic toxicologist who tested and issued a report on the samples sent
to the lab by the Cumberland County Coroner, testified as to the toxic
41
levels of heroin in the samples taken from Ms. Tubbs.
41. The forensic toxicologist also described toxic levels of heroin in Ms.
42
Avery’s blood samples that were tested at the lab.
42. In Mr. Sullivan’s samples, the forensic toxicologist found the stimulant
amphetamine, low levels of marijuana, inactive metabolites of cocaine,
43
and toxic levels of heroin.
36
N. T., v. II at p. 37-38.
37
N. T., v. II at p. 38.
38
N. T., v. II at p. 85.
39
N. T., v. II at p. 93.
40
N. T., v. II at p. 226-27.
41
N. T., v. II at p. 129-35.
42
N. T., v. II at p. 140.
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43. Codefendant, Jesse Blais, took the stand for the Commonwealth and
confirmed that he too was facing charges for the drug delivery resulting in
death with regard to Ms. Avery and Mr. Sullivan as well as other drug
44
charges arising out of their deaths.
44. When testifying for the Commonwealth, Codefendant explained he had
not been given any offer in exchange for his testimony, but he confirmed
45
that he was “hoping to catch some type of break.”
45. Codefendant indicated he started selling the M*O*B product in early
46
2015.
46. Further, it was indicated that Codefendant was selling the M*O*B product
47
to support his own drug habit.
47. Codefendant described the consistency of the M*O*B product as “always
48
good” and “the best in the area.”
48. Codefendant indicated that he was getting his M*O*B product from
Defendant beginning in early April 2015 and that Defendant was
49
Codefendant’s only source of the M*O*B product.
49. Codefendant went on to describe the sales operation between himself and
Defendant, which included specific sales to Ms. Avery and making sales of
43
N. T., v. II at p. 142-151.
44
N. T., v. III at p. 7-8.
45
N. T., v. III at p. 10.
46
N. T., v. III at p. 19.
47
N. T., v. III at p. 20.
48
N. T., v. III at p. 22.
49
Id.
9
CR-3256-2015
heroin packaged in the M*O*B pre-stamped bag and bundles in Mr.
50
Sullivan’s area.
50. Codefendant was sentenced in May of 2017 to two (2) counts of delivery
of heroin, in full satisfaction of the drug delivery resulting in death charges,
to a sentence beyond the aggravated range, which the sentencing court
justified based on the death of the victims and the agreement of the
51
parties.
51. A narcotics detective for the Silver Spring Township Police Department,
who is also a Cumberland County Drug Task Force detective, handled the
52
drug investigation side of the vehicular incident involving Ms. Tubbs.
52. The narcotics detective’s investigation narrowed to Defendant in due
53
course.
53. The narcotics detective authored the search warrants obtained for
54
Defendant’s home, cell phone, and vehicle.
54. The search warrants were executed by design at the end of Ms. Tubbs’
55
funeral.
55. At the end of the funeral, the narcotics detective walked over to
Defendant, identified himself as an officer, informed Defendant of the
50
N. T., v. III at p. 23-26.
51
Motion to Modify Sentence, Order of Court May 23, 2017, Judge Masland.
52
N. T., v. III at p. 74-75.
53
N. T., v. III at p. 82.
54
N. T., v. III at p. 84-86.
55
N. T., v. III at p. 89.
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investigation, then provided him a copy of the search warrant for his cell
56
phone and vehicle that were on scene.
56. Defendant talked to the narcotics detective, who had advised Defendant of
his constitutional rights prior to having what would be a “decent length
57
conversation.”
57. During this conversation, Defendant explained to the narcotics detective
that he was getting heroin out of Philadelphia in bulk, approximately 120 to
58
130 bundles at a time.
58. Defendant indicated that when he obtained the heroin from his source, it
59
was stamped M*O*B.
59. Defendant described to the narcotics detective the pricing structure and
60
infrastructure employed by the unnamed people selling underneath him.
60. Defendant indicated that Ms. Tubbs had only used one bag of heroin
before the crash happened, and advised the narcotics detective that she
61
snorted heroin rather than injected heroin.
61. Defendant told the narcotics detective that Ms. Tubbs’ source of heroin
was “from him” and he would put it out for her in a drawer on the coffee
62
table.
63
62. Defendant claimed to be the sole source of M*O*B heroin for this area.
56
N. T., v. III at p. 90.
57
N. T., v. III at p. 90-91.
58
N. T., v. III at p. 92.
59
N. T., v. III at p. 93.
60
Id.
61
N. T., v. III at p. 94-96.
62
Id.
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63. Defendant advised the narcotics detective that the police were not going
to find any heroin anywhere and thus no charges would be brought
64
against him.
64. Defendant specifically did not want to discuss any of the drug dealers that
he established as sellers for him as it may link him to some of the drug
65
deaths.
65. When asked about the heroin overdose deaths, Defendant said, “they
66
fucked up and took too much.”
66. The post funeral interview gave rise to the police seeking an additional
search warrant for the hotel room at which Defendant was staying prior to
67
the funeral.
67. At the execution of the hotel room search warrant, Defendant approached
the narcotics detective, stated he wanted to talk with detective, and
68
detective proceeded to conduct a second interview.
68. Defendant advised detective of the currency to be found in the safe, which
69
was found as described.
69. Defendant was not arrested directly after the post funeral conversation or
70
the hotel conversation.
63
N. T., v. III at p. 97.
64
N. T., v. III at p. 99.
65
N. T., v. III at p. 100.
66
N. T., v. III at p. 101.
67
N. T., v. III at p. 103.
68
N. T., v. III at p. 104.
69
N. T., v. III at p. 104-05.
70
N. T., v. III at p. 106,109.
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CR-3256-2015
70. Defendant met again with the narcotics detective the following day at the
71
Silver Spring Township Police Department in a complaint room.
71. Defendant acknowledged, during this interview, his relationship to
Codefendant. Defendant indicated that Codefendant was a drug dealer
selling heroin for him because Codefendant had the connections “with the
72
junkies.”
73
72. At the end of that interview, Defendant was placed under arrest.
74
73. Defendant has a prior criminal history and is designated a repeat felon.
DISCUSSION
Statement of Law. Sufficiency of the evidence –
The test for sufficiency of the evidence is whether, accepting as true all of the
evidence, be it direct or circumstantial, and all reasonable inferences arising
therefrom upon which, if believed, the trier of facts could properly have based the
verdict, it is sufficient in law to prove beyond a reasonable doubt that the
defendant is guilty of the crime or crimes of which he has been convicted.
Commonwealth v. Johnson, 326 A.2d 315, 316 (Pa. 1974).
Weight of the evidence –
A true “weight of the evidence” claim contends the verdict is a product
of speculation or conjecture. Such a claim requires a new trial only
when the verdict is so contrary to the evidence as to shock one’s sense
of justice. A decision regarding the weight of the evidence is within the
sound discretion of the trial judge whose decision will not be reversed
on appeal absent an abuse of that discretion.
Commonwealth v. Beckwith, 674 A.2d 276, 281 (Pa. Super. 1996)(internal
citations omitted).
71
N. T., v. III at p. 109.
72
N. T., v. III at p. 111.
73
N. T., v. III at p. 114.
74
Palson presentence investigation report, designated as “memo,” dated December 13, 2016.
13
CR-3256-2015
Judgment of acquittal – “A motion for judgment of acquittal challenges the
sufficiency of the evidence to sustain a conviction on a particular charge, and is granted
only in cases in which the Commonwealth has failed to carry its burden regarding that
charge.” Commonwealth v. Emanuel, 86 A.3d 892, 894 (Pa. Super. 2014) The legal
analysis necessary in determining whether a motion for judgment of acquittal is
appropriate is “whether the evidence is sufficient to permit a jury to determine that each
and every element of the crimes charged has been established beyond a reasonable
doubt.” Commonwealth v. Feathers, 660 A.2d 90, 95 (Pa. Super. 1995).
Offenses defined – A person commits a felony of the first degree if the person
intentionally administers, dispenses, delivers, gives, prescribes, sells or distributes
any controlled substance or counterfeit controlled substance in violation of section
13(a)(14) or (30) of The Controlled Substance, Drug, Device and Cosmetic Act, and
another person dies as a result of using the substance. 18 Pa.C.S. § 2506
(emphasis added). The above Act prohibits, except when specifically authorized, the
manufacture, delivery, or possession with intent to manufacture or deliver, a
controlled substance by a person not registered under this act, or a practitioner not
registered or licensed by the appropriate State board, or knowingly creating, delivering
or possessing with intent to deliver, a counterfeit controlled substance. 35 P.S. § 780-
113(a)(30)(emphasis added). A person is guilty of conspiracy with another person or
persons to commit a crime if with the intent of promoting or facilitating its commission he
agrees with such other person or persons that they or one or more of them will engage
in conduct which constitutes such crime or an attempt or solicitation to commit such
crime. 18 Pa.C.S. § 903(a)(1).
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Information Amendment – “The court may allow an information to be amended,
provided that the information as amended does not charge offenses arising from a
different set of events and that the amended charges are not so materially different from
the original charge that the defendant would be unfairly prejudiced.” Pa.R.Crim.P. 564.
In reviewing a grant to amend an information, the court should look to whether the
defendant was fully apprised of the factual scenario that supports the charges against
him. “Where the crimes specified in the original information involved the same basic
elements and arose out of the same factual situation as the crime added by the
amendment, the appellant is deemed to have been placed on notice regarding his
alleged criminal conduct and no prejudice to defendant results.” Commonwealth v.
Sinclair, 897 A.2d 1218, 1222 (Pa. Super. 2006).
Constitutionality – Analysis of the constitutionality of a statute is left to the
appellate courts, as their standard as to whether the Commonwealth met its prima facie
case under Section 2506, is a question of law, therefore, their standard of review is de
novo. Commonwealth v. MacPherson, 561 Pa. 571, 752 A.2d 384, 388 (Pa. 2000);
Pa.R.A.P. 2111(a)(2). The appellate scope of review is plenary, i.e., they may consider
the entire record. Buffalo Township v. Jones, 813 A.2d 659, 664 (Pa. 2002);
Pa.R.A.P. 2111(a)(2). However, it must be noted as established in other similar cases
that Defendant's conduct is precisely what the legislature intended to proscribe when it
enacted Section 2506. Accordingly, Section 2506 is not unconstitutionally vague. See
Commonwealth v. Kakhankham, 132 A.3d 986, 992 (Pa. Super. 2015).
Sentence discretion – Courts have “broad discretion to choose a penalty from
sentencing alternatives and the range of permissible confinements, provided the
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choices are consistent with the protection of the public, the gravity of the offense, and
the rehabilitative needs of the defendant.” Commonwealth v. Devers, 546 A.2d 12, 13
(Pa. 1988).
We emphatically reject, therefore, interpretations of our law in this area which call
for separate, written opinions embodying exegetical thought. Where pre-
sentence reports exist, we shall continue to presume that the sentencing judge
was aware of relevant information regarding the defendant's character and
weighed those considerations along with mitigating statutory factors. A pre-
sentence report constitutes the record and speaks for itself. In order to dispel
any lingering doubt as to our intention of engaging in an effort of legal
purification, we state clearly that sentencers are under no compulsion to employ
checklists or any extended or systematic definitions of their punishment
procedure. Having been fully informed by the pre-sentence report, the
sentencing court's discretion should not be disturbed. This is particularly
true, we repeat, in those circumstances where it can be demonstrated that
the judge had any degree of awareness of the sentencing considerations,
and there we will presume also that the weighing process took place in a
meaningful fashion.
Id., at 18. (emphasis added).
Application of Law to Facts: The analysis for the error claims for sufficiency of
the evidence, weight of the evidence and judgment of acquittal all involve review of the
evidence submitted to a jury to determine that each and every element of the crimes
charged has been established beyond a reasonable doubt and was the verdict based
on credulity. The forensic evidence clearly established that each of the victims died
from lethal levels of heroin, multiple times the toxic level, in each of the victim’s
systems; thus, the charge of drug delivery resulting in death was available if the jury
found Defendant to have delivered, given, or distributed the M*O*B heroin to the
victims.
“To establish the offense of possession of a controlled substance with intent to
deliver, the Commonwealth must prove beyond a reasonable doubt that the defendant
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CR-3256-2015
possessed a controlled substance with the intent to deliver it.” Commonwealth v.
Kirkland, 831 A.2d 607, 611 (Pa. Super. 2003), appeal denied, 847 A.2d 1280 (Pa.
2004). The intent to deliver can be inferred from an examination of the surrounding
facts and circumstances. Id. “Factors to consider in determining whether the drugs were
possessed with the intent to deliver include the particular method of packaging, the form
of the drug, and the behavior of the defendant.” Id.
Defendant’s own words to the police admitted he distributed M*O*B branded
heroin; indeed, he became the exclusive distributor of the product because of the
delivery organization he had developed that allowed his supplier to deal solely with
Defendant for maximum profit. Further, in belief that Ms. Tubbs had died as a result of
an auto accident, Defendant freely confessed that he supplied her with heroin and
anything else she wanted from his business enterprise. Defendant simply would leave
a ration of M*O*B heroin on the coffee table for Ms. Tubbs to ingest as desired.
The Commonwealth’s case was more than Defendant’s own words. It included
the testimony of Codefendant who described the business model for sales of M*O*B
branded heroin, specific sales to Ms. Avery, and distribution to clients like Mr. Sullivan.
This testimonial evidence was corroborated by the empty and unused M*O*B packets
found at each death scene, identification of Codefendant with Ms. Avery in a final
transaction, and phone logs between Mr. Sullivan with the Defendant’s established
delivery organization and narcotics distribution lessons from expert police officers.
Claims that the evidence was insufficient or that the jury found Defendant guilty without
solid evidence are meritless.
17
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The amendment of the information was properly permitted as it was corrective in
nature (from cocaine to heroin) as the identified controlled substance being distributed
by Defendant. The only relief to a proper amendment is to allow postponement of the
trial or other relief as is necessary in the interests of justice. No postponement was
requested by counsel, nor was any necessary as all parties were well aware this was a
case about heroin sales.
The error claim for defense counsel’s attempt to enter a police report that named
an alternative suspect to the charge of a delivery resulting in the death of Ms. Tubbs is
specious. The transcript shows that counsel was permitted to fully examine the
evidence of the police investigation into other sources of M*O*B heroin from the
narcotics detective, who was aware of the specifically named person delivering M*O*B
75
heroin. Counsel was permitted to introduce all the information from the narcotics
detective’s police report through the author of the report, who was on the witness stand.
However, the detective upon further defense counsel inquiry testified “there's no
evidence in my investigation to suggest that \[named person\] delivered heroin to \[Ms.\]
76
Tubbs. \[Ms.\] Tubbs was getting her heroin from \[Defendant\].” Further testimony
elicited many other M*O*B heroin dealers inquired upon by defense counsel, to which
77
the detective ultimately summed up as “all related back to the source of \[Defendant\].”
Defendant’s complaint that it was an abuse of discretion to impose an
aggravated sentence for each of the three convictions for drug delivery, count 2, is
infirm. The presentence investigation correctly determined that Defendant is a repeat
75
N.T. v. III at p. 126.
76
Id.
77
Id., at p. 127.
18
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felon \[RFEL\], which for the three counts at count 2 results in an offense gravity score of
78
6 and an offense level of 4 that has a standard range of “27-40 BC” and being
sentenced to a concurrent term of confinement of not less than 27 months nor more
than 120 months in a State Correctional Facility is clearly within the guidelines and not
an abuse of discretion. Indeed, all the sentences are within the standard guidelines,
albeit each victim’s drug delivery resulting in death sentence ran consecutively as did
the conspiracy at count 3. In retrospect, the only issue with this sentence may be that it
is too lenient by comparison to the above the aggravated range sentence given to
Codefendant, who cooperated with the Commonwealth.
The gamesmanship seen from Defendant at trial, sentencing and in this appeal is
typical for a repeat felon, who has nothing to lose by the insant appeal, which is without
merit, and the verdict of the jury and sentence should be affirmed.
By the Court,
________________________
Thomas A. Placey C.P.J.
Distribution:
Charles J. Volkert, Jr., Esq.
Marlin M. Markley, Jr., Esq.
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http://pcs.la.psu.edu/guidelines/sentencing/sentencing-guidelines-and-implementation-manuals/7th-
edition/303.16-basic-sentencing-matrix-color/view
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