J-S16013-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

v.

KINTA BURNETT,

Appellant No. 1279 MDA 2013

Appeal from the Judgment of Sentence Entered June 6, 2013 In the Court of Common Pleas of Dauphin County

Criminal Division at No(s): CP-22-CR-0001861-2012

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA Appellee

v.

KINTA BURNETT,

Appellant No. 1479 MDA 2013

Appeal from the Judgment of Sentence Entered June 19, 2013

In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0001632-2012

BEFORE: BENDER, P.J.E., DONOHUE, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED MAY 20, 2014

Appellant, Kinta Burnett, appeals from the judgments of sentence

entered in two separate cases, which this Court sua sponte consolidated by

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

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per curiam order entered September 10, 2013. Appellant’s sentences

totaled an aggregate term of 7 to 15 years’ incarceration, and were imposed

after he was convicted of various firearm and drug-related offenses, as well

as corruption of minors. Appellant challenges the sufficiency and weight of

the evidence to sustain his convictions. For the following reasons, we affirm

Appellant’s judgment of sentence in case No. 1479 MDA 2013, and vacate

his judgment of sentence and remand for resentencing in case No. 1279

MDA 2013.

While this Court consolidated Appellant’s appeals, for ease of

disposition, we will address each case in turn. In the case docketed at 1479

MDA 2013, Appellant was convicted by a jury of various firearm-related

offenses, as well as corruption of minors. The trial court provided a detailed

summary of the evidence presented at Appellant’s trial, as follows:

On the night of January 29, 2012, Rikita Lynn Easter (“Ms. Easter”) arrived at the Paxton Street Pub around midnight, then left for approximately 1 ½ hours to attend a party at a nearby rental hall called Three Amigos. Rikita Easter is also known as

“Rock” to her friends. Ms. Easter was at the Paxton Street Pub (“The Pub”) with individuals named Elton or “Bolo” Corbin, Shariece or “Riecy[]” [Richardson,] and Shariece’s cousin[, Robert Hicks]. The others did not go to Three Amigos with [Ms. Easter]. Ms. Easter was socializing and drinking while at The

Pub after returning from Three Amigos around 1:20 a.m. She stated that she had consumed three or four drinks between

arriving at midnight and the time of the incident, but was not intoxicated.

Ms. Easter explained that she had been close friends with

Appellant but that the friendship had soured when she loaned him $300 which he had never repaid despite repeated requests

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to do so. She stated that one previous altercation resulted from

Appellant’s failure to pay the loan; however, she eventually stopped worrying about it.

Ms. Easter testified that her encounter with Appellant began, at The Pub, when she and [Mr. Corbin] were dancing.

She stated that [Appellant] walked up to [Mr. Corbin], bumped

[Mr. Corbin] with his shoulder[,] and said something to the effect of “don’t have nobody hype you up in here or I will fuck you up.” Ms. Easter responded by saying to Appellant that the group was there to have a good time and nobody was worried

about him being at The Pub. She told him to go back to “The Heights” referring to OD’s Plantation, the bar that used to be called the Cloverly Heights Bar. After the verbal confrontation, Ms. Easter saw Appellant leave The Pub.

At closing time, a group that included Ms. Easter, [Mr.

Corbin], [Ms. Richardson], [Mr. Hicks], a woman named Ginitza and a few of her friends left The Pub on foot down an alley called

Ione Street. Ms. Easter explained that she was going to walk home to South Fourteenth Street after the group walked Ginitza

and her friends to a car parked in the lot near The Pub. She was not sure where the rest of the group was headed. As Ms. Easter,

[Mr. Corbin], [Ms. Richardson], and her cousin, Robert [Hicks], were approaching Row 1 Hall Manor (“Row 1”), a public housing

project nearby, she heard footsteps behind her, turned around and saw Appellant running at [Mr. Corbin] and then hit him in

the back causing him to fall. Ms. Easter testified that Appellant

pulled a gun from his right coat pocket and handed it to another individual named Chaz Page. Ms. Easter stated that she did not

know Page, but had an argument with him on one prior occasion. She stated that Appellant started to go after [Mr.

Corbin] again when she intervened and Appellant swung at her but she had ducked the blow. Ms. Easter fought back by pulling

[Appellant’s] hood over his head and tried to knock him down. When the scuffle broke up, Chaz Page grabbed Ms. Easter’s arms while saying “you all not going to swoop him” but she was able to push his hands off of her and move away. Ms. Easter testified

that at this point in time, Chaz Page shot her multiple times from a distance of approximately two feet. She described the gun as

being a dark colored handgun that was nine or ten inches long, but she was not sure whether it was a revolver or semiautomatic

firearm. [Mr. Corbin] and Appellant screamed [and] then

Appellant and Chaz Page ran in the direction of Row 1.

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When she was still conscious, Ms. Easter got up and tried

to walk away only to collapse on the lawn of Row 1, where a male with the nickname “Izzy” found her and laid her in the back seat of his Lexus brand vehicle. Ms. Easter was taken to the Hershey Medical center for treatment of her significant injuries

which necessitated multiple surgeries and a lengthy hospital stay.

On cross[-]examination, defense counsel pointed out that

[Ms. Easter’s] February 1, 2012 statement to Detective Krokos indicated that she had told him that Appellant hit [Mr. Corbin]

with a gun. However, this statement was given at a time when [Ms. Easter] was hospitalized and medicated.

On the night of the incident, January 29, 2012, around

11:00 p.m., Shariece Richardson (“Ms. Richardson”) went to the Cloverly Heights Bar (“The Heights”), later known as OD’s, with

her then boyfriend Elton “Bolo” Corbin, and her cousin Robert Hicks. Upon leaving The Heights, they met up with Ms. Easter,

who was also known as “Rock[,”] and proceeded on to the Paxton Street Pub. Ms. Richardson was sitting at the bar in The

Pub while [Mr. Corbin] and [Ms. Easter] were dancing, but she did not recall an altercation on the dance floor. She also did not

recall Ms. Easter leaving at any point in time. Ms. Richardson remembered seeing Appellant at the Pub for about five or ten

minutes.

The group Ms. Richardson was with that evening left The Pub at 2:00 a.m., as it was closing time. She testified that they

were going to her friend Jenice’s house at Row 27 Hall Manor. Ms. Richardson stated that the group was walking down the

street toward Hall Manor through the Heights’s [sic] parking lot. This was where Appellant pushed [Mr. Corbin] from behind and

an argument began that included [Ms. Easter]. [Mr. Corbin] and

Appellant were scuffling in the grass. Subsequently, a physical confrontation started between Appellant and [Ms. Easter]. Ms.

Richardson testified that Appellant pulled a gun from his waist with his right hand, then handed it to Chaz who shot [Ms.

Easter] four or five times from about ten or fifteen feet away. Ms. Richardson went to Ms. Easter to apply pressure to her

wounds, [Mr. Corbin] stayed with them, Appellant and Chaz ran[,] and Robert Hicks walked away to his grandmother’s house in Hall Manor.

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On the date of the incident, Ms. Richardson positively

identified Appellant in a photo array presented by detectives as the person who handed a gun to Chaz Page. She also identified

a picture of Page, himself. Ms. Richardson also testified that the gun pulled by Appellant was approximately nine to ten inches

long, but admitted that at the preliminary hearing she described it as long and skinny and silver.

At trial, Robert Hicks (“Mr. Hicks”) testified to meeting Ms. Easter at The Pub on the night of the incident for drinking and socializing. Mr. Hicks specifically recalled Easter and Bolo/Elton

Corbin dancing when he saw Appellant enter the bar and go up to Rock. He stated that an argument ensued after which

Appellant left the bar.

Mr. Hicks, along with the rest of the group, left The Pub at closing time and headed toward the parking lot of The Heights as

he said they were going to his aunt’s house in Hall Manor. Mr. Hicks testified that Appellant came up from behind and pushed

[Mr. Corbin], then handed off a gun to the other male who was with Appellant. Hicks stated that the other person who was with

Appellant shot Rock/Ms. Easter then both men ran away in two different directions. Because he was scared, Mr. Hicks also left

the scene and went to his aunt’s house. He was unable to identify Appellant from a photo array on the date of the incident.

Elton Corbin (“Mr. Corbin,” or “Bolo”) also testified that he, Ms. Easter, Ms. Richardson and Mr. Hicks were drinking and socializing at The Pub on the night of the incident. He stated

that when he was dancing with Ms. Easter, Appellant came up to them and said something to the effect of “don’t get hyped up or something, you’ll get fucked up.” Mr. Corbin said that he only knew Appellant from seeing him around and previously had no

problems with him. Mr. Corbin said he ignored him but Ms.

Easter said something that started an argument. Appellant left the bar shortly thereafter and [Mr.] Corbin’s group left around 1:45 a.m.

Mr. Corbin stated that the group was heading to his sister’s friend’s house in Hall Manor, a person named Jenice. When they were in The Height’s parking lot, he was pushed to the ground from behind. When Mr. Corbin looked up, he saw Appellant and

Ms. Easter in a physical fight that he tried to break up. At this point, Mr. Corbin heard and saw someone he identified as Chaz

Page come from behind him saying “ain’t nobody going to swoop

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him,” and begin shooting Ms. Easter. On the night of the incident, [Mr.] Corbin identified Page as the shooter in a photo array presented by detectives.

During trial, Mr. Corbin testified that he could not recall seeing the gun passed to Mr. Page by Appellant, only that he

saw the gun being shot by Page. On the night of the shooting,

he gave a statement to Detective [Christopher] Krokos [of the Special Operations Unit of HBP, who was assigned to investigate

the shooting. Mr. Corbin told Detective Krokos] that he thought Appellant was holding the gun when he pushed him down

because he saw the gun as he was getting up from being pushed. [Mr.] Corbin also said that he did not believe Appellant

intended to shoot and that he saw the gun being passed by Appellant to Page. In his statement, [Mr.] Corbin described the

gun he saw as little and black but he did not recall giving a description because he does not know what kind of gun it was.

***

The investigations led to [] Appellant and Chaz Page being

identified as the suspects in the shooting of Ms. Easter. Mr. Page turned himself into police shortly after the incident but an

extensive search for Appellant lasted about a month. At the time of the crime Chaz Page was seventeen years old. Once the

location of Appellant was determined in late February 2012, Detective [Donald] Heffner[, who was a member of the Criminal

Investigation Division at the time of the shooting,] was directed to take him into custody. [Detective Heffner took] Appellant into

custody on February 27, 2012, when he was found at his girlfriend’s house.

Trial Court Opinion (TCO), 12/19/13, at 4-13 (citations to the record

omitted).

Appellant also testified at his trial, claiming that in the two years

following Ms. Easter’s loaning him money, Ms. Easter had been instigating

arguments with Appellant, threatening him, and “had others intimidate him

with handguns about the unpaid debt….” Id. at 14 (citations to record

omitted). He admitted that on the night of the shooting, he pushed Elton

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Corbin in the parking lot behind Cloverly Heights/OD’s bar. Id. at 15.

Appellant testified that Ms. Easter then attacked him, “throwing punches [at

Appellant] and pulling the hood over Appellant’s face.” Id. When Appellant

got away from Ms. Easter, he saw Mr. Corbin coming towards him to fight.

Id. Appellant claimed that at that moment, he “heard two gunshots, ducked

and ran, but turned around when someone said ‘he just shot Rock.’” Id.

“Appellant testified that he saw Chaz Page standing where Ms. Easter was

getting off the ground.” Id. Appellant claimed that he had no interaction

with Chaz Page prior to the shooting, other than seeing Page in the parking

lot and saying “what’s up” to him. Id. at 16. He testified that Chaz Page

shot Ms. Easter “out of the blue.” Id.

At the close of Appellant’s trial, the jury convicted him of possession of

a firearm by a person prohibited, 18 Pa.C.S. § 6105(a)(1), delivery of a

firearm to a minor by an adult, 18 Pa.C.S. § 6110.1(c), carrying a firearm

without a license, 18 Pa.C.S. § 6106(a)(1), and corruption of minors, 18

Pa.C.S. § 6301(a)(1)(i). He was subsequently sentenced to an aggregate

term of five to ten years’ incarceration, which was imposed to run

consecutively to Appellant’s sentence in case No. 1279 MDA 2013, which will

be discussed infra. Appellant filed timely post-sentence motions in both

cases that were denied.

Appellant then filed timely notices of appeal with this Court, as well as

timely concise statements of errors complained of on appeal in accordance

with Pa.R.A.P. 1925(b). Herein, he raises two issues for our review:

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1. Whether the evidence presented at trial [in case No. 1279

MDA 2013] was insufficient to sustain the conviction of the Appellant for possession of a controlled substance with the intent

to deliver?

2. Did the trial court abuse its discretion when it denied

Appellant’s motions for new trials based on the weight of the evidence for the offenses of persons not to possess a firearm, [delivery of] a firearm [to] a minor, carrying a firearm without a

license, corruption of minors and [PWID] because the verdicts were so contrary to the weight of the evidence to shock one’s sense of justice?

Appellant’s Brief at 6.

In regard to case No. 1479 MDA 2013, involving the shooting of Ms.

Easter, Appellant only challenges the weight of the evidence to sustain his

convictions. In assessing this claim, we apply the following standard of

review:

A claim alleging the verdict was against the weight of the evidence is addressed to the discretion of the trial court.

Accordingly, an appellate court reviews the exercise of the trial court's discretion; it does not answer for itself whether the

verdict was against the weight of the evidence. It is well settled

that the jury is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses, and a new trial

based on a weight of the evidence claim is only warranted where the jury's verdict is so contrary to the evidence that it shocks

one's sense of justice. In determining whether this standard has been met, appellate review is limited to whether the trial judge's

discretion was properly exercised, and relief will only be granted where the facts and inferences of record disclose a palpable

abuse of discretion.

Commonwealth v. Houser, 18 A.3d 1128, 1135-1136 (Pa. 2011) (citations

and internal quotation marks omitted).

Appellant argues that the jury’s verdict was contrary to the weight of

the evidence because “[e]very Commonwealth witness that testified at trial

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presented a different version of events for the early morning of January 29,

2012….” Appellant’s Brief at 18. For instance, he claims that Ms. Easter,

Ms. Richardson, Mr. Hicks, and Mr. Corbin all testified differently regarding

the description of the firearm, and whether 1) Ms. Easter left The Pub at any

point during the night, 2) Appellant’s physical contact with Mr. Corbin was a

push or a hit, 3) Mr. Corbin fell to the ground or remained standing when

struck by Appellant, and 4) Appellant pulled the firearm from his jacket

pocket or his waistband.

Appellant also claims that these witnesses gave statements to police

that differed from their testimony at trial. For instance, Appellant

emphasizes that both Mr. Corbin and Ms. Easter told Detective Krokos that

Appellant had a firearm in his hand when he initially struck or pushed Mr.

Corbin, yet neither witness made the same claim at trial. Mr. Corbin also

told Detective Krokos that he saw Appellant hand the firearm to Chaz Page,

but testified at trial that he did not see Appellant do this.

Based on all of these discrepancies, Appellant claims that the jury’s

verdict was shocking and a new trial is warranted. The Commonwealth,

however, maintains that the witnesses’ testimony and statements to police

contained “only minor variations in details that would be expected from four

different people witnessing an event from four different perspectives.”

Commonwealth’s Brief at 20.

We agree with the Commonwealth. While the witnesses did have

varying accounts of the incident, their testimony, as a whole, was not so

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contradictory as to render the jury’s verdict shocking. Namely, Ms. Easter,

Ms. Richardson, and Mr. Hicks all testified that they saw Appellant in

possession of a firearm, which he handed to Chaz Page. Ms. Richardson

gave a similar account to police on the night of the incident and identified

Appellant from a photographic array. Additionally, on the night of the

shooting, Mr. Corbin told Detective Krokos that he thought Appellant was

holding a firearm when Appellant pushed him. While his testimony changed

at trial, the jury was free to credit his statement to Detective Krokos on the

night the shooting took place. Similarly, regardless of the discrepancies

cited by Appellant, the jury was entitled to believe the testimony of Ms.

Easter, Ms. Richardson, and Mr. Hicks that Appellant possessed a firearm

and handed it to Chaz Page prior to Page’s shooting Easter.1 Accordingly,

we ascertain no abuse of discretion in the court’s decision to deny

Appellant’s motion for a new trial based on the weight of the evidence. As

Appellant has raised no other issues with respect to case No. 1479 EDA

2013, we affirm his judgment of sentence in that case.

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1 See Commonwealth v. London, 337 A.2d 549, 572-73 (Pa. 1975)

(citations omitted) (“[N]otwithstanding discrepancies in the evidence or any dissimilarity between a defendant’s testimony and that of other witnesses, the trier of fact may believe all, part or none of the testimony of any witness for the Commonwealth or the defense. Since it is the trier of fact’s responsibility to reconcile any differences by determining who is worthy of belief, the reasonable doubt which will prevent conviction must be the fact

finder’s doubt and not that of an appellate court.”)

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In regard to case No. 1279 EDA 2013, Appellant was convicted of

possession with intent to deliver a controlled substance (PWID) and

possession of drug paraphernalia after a large quantity of marijuana and

drug paraphernalia was discovered in Appellant’s girlfriend’s home, where

Appellant was located at the time he was arrested for his involvement in Ms.

Easter’s shooting. Appellant was sentenced to a mandatory minimum term

of two years’ incarceration pursuant to 18 Pa.C.S. § 6317(a), which applies

when, inter alia, a PWID offense is committed within 250 feet of a

playground. He filed a timely notice of appeal and, herein, he challenges the

sufficiency and weight of the evidence to sustain his conviction of PWID.

We have examined the certified record, the briefs of the parties, and

the applicable law. Additionally, we have reviewed the opinion of the

Honorable Deborah E. Curcillo of the Court of Common Pleas of Dauphin

County. We conclude that Judge Curcillo’s well-reasoned opinion accurately

disposes of Appellant’s sufficiency and weight issues. Accordingly, we adopt

Judge Curcillo’s opinion as our own and conclude that Appellant’s challenges

to the sufficiency and weight of the evidence are meritless.

However, we are nevertheless constrained to vacate Appellant’s

judgment of sentence and remand for resentencing in case No. 1279 EDA

2013. The trial court imposed a mandatory minimum sentence for

Appellant’s PWID conviction that is illegal under the Supreme Court’s

decision in Alleyne v. United States, 133 S. Ct. 2151, 2156 (2013). While

Appellant did not raise this issue on appeal, “[a] challenge to the legality of

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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). This Court has characterized mandatory minimum sentencing issues

stemming from Alleyne as implicating the legality of a defendant’s

sentence. See Commonwealth v. Watley, 81 A.3d 108, 117-118 (Pa.

Super. 2013); Commonwealth v. Munday, 78 A.3d 661, 664 (Pa. Super.

2013).

In Alleyne, the Supreme Court held that “[a]ny fact that, by law,

increases the penalty for a crime is an ‘element’ that must be submitted to

the jury and found beyond a reasonable doubt.” Alleyne, 133 S.Ct. at

2155. Here, after Appellant’s jury trial, the court held a sentencing hearing

and considered evidence regarding the applicability of the mandatory

minimum sentence required by 18 Pa.C.S. § 6317(a). Ultimately, the court

concluded, by a preponderance of the evidence, that Appellant committed

the offense of PWID within 250 feet of a playground. Under Alleyne, the

jury was required to make this determination beyond a reasonable doubt.

Consequently, the court’s imposition of a two year mandatory

minimum under section 6317(a) was illegal and Appellant’s PWID sentence

must be vacated. Because this disposition upsets the court’s overall

sentencing scheme, we also vacate Appellant’s judgment of sentence for

possession of paraphernalia. See Commonwealth v. Thur, 906 A.2d 552,

569-70 (Pa. Super. 2006) (“If our disposition upsets the overall sentencing

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scheme of the trial court, we must remand so that the court can restructure

its sentence plan.”). We remand for resentencing on both of those offenses.

Judgment of sentence in case No. 1479 MDA 2013 affirmed. Judgment

of sentence in case No. 1279 MDA 2013 vacated. Case No. 1279 MDA 2013

remanded for resentencing. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/20/2014