Com. v. Hicks, D.
734 MDA 2016
| Pa. Super. Ct. | Jan 26, 2017Background
- In Jan 2015 Montgomery County Detective Wood (undercover communications) arranged a methamphetamine purchase for Trooper Reed from a seller known as “Joey.”
- Trooper Reed met appellant Damian Hicks in a Walmart parking lot; Hicks identified himself as “Joey,” sold a bag of powder later lab-tested positive for methamphetamine, and received $210.
- Text messages exchanged between “Joey” and Detective Wood before and after the sale discussed arranging the sale and referenced the transaction, price, and product quality.
- Police did not arrest Hicks immediately due to the small amount; a later planned June 2015 larger buy failed and Hicks was arrested thereafter.
- Hicks was convicted by a jury of delivery of a controlled substance, criminal use of a communication facility, possession-related counts, and sentenced to consecutive terms (18 months–5 years and 9 months–3 years).
- On appeal Hicks challenged (1) sufficiency of evidence for the communication-facility charge, (2) weight of the evidence, and (3) his sentence (discretionary aspects and merger/legality).
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Hicks) | Held |
|---|---|---|---|
| Sufficiency: criminal use of a communication facility | Texts and circumstantial evidence tie "Joey" to Hicks; jury may infer Hicks sent messages that facilitated the sale | Insufficient identification — no phone records, surveillance or direct proof Hicks sent the texts or made calls | Conviction upheld: circumstantial evidence (Hicks calling himself "Joey," contemporaneous texts about the transaction) was sufficient |
| Weight of the evidence | Evidence was credible and supported verdict; trial court correctly denied new-trial request | Verdict shocks the conscience because identification of Hicks as the phone/text user was weak | Waived for appeal (not raised properly before sentencing); alternatively, no abuse of discretion — verdict not against weight |
| Discretionary-sentencing claim | N/A (Commonwealth defends sentencing procedure) | Sentence excessive, outside guidelines, court failed to consider cooperation and family circumstances | Waived under Colon requirements and preserved issues; appellate court will not review discretionary-sentencing claim |
| Merger / Legality of sentence | Crimes do not merge because they arise from separate acts and have distinct elements | Criminal-use-of-communication-facility should merge into delivery for sentencing | Merger rejected: separate criminal acts (arranging by phone vs. physical delivery) and elements differ; sentence legal |
Key Cases Cited
- Commonwealth v. Moss, 852 A.2d 374 (Pa. Super. 2004) (defines elements of criminal use of a communication facility and requires facilitation of a specific underlying felony)
- Commonwealth v. Baldwin, 985 A.2d 830 (Pa. 2009) (section 9765 merger standard: single act and element inclusion required for merger)
- Commonwealth v. Yeomans, 24 A.3d 1044 (Pa. Super. 2011) (separate criminal acts beyond bare elements defeat merger)
- Commonwealth v. Sherwood, 982 A.2d 483 (Pa. 2009) (weight-of-the-evidence claim must be raised pre-sentencing under Pa.R.Crim.P. 607 to avoid waiver)
- Commonwealth v. Hennigan, 753 A.2d 245 (Pa. Super. 2000) (standard for sufficiency review and application of circumstantial evidence)