Com. v. Irvin, D.
432 MDA 2017
| Pa. Super. Ct. | Dec 14, 2017Background
- David S. Irvin was convicted by a jury of two counts of delivery of a controlled substance (heroin) based on two controlled buys on Sept. 15 and 17, 2015 using a confidential informant (CI).
- CI called the same phone number both times, entered a white Hyundai (same license plate) driven by Irvin, and after each ride the CI surrendered bundles later tested as heroin; officers searched CI beforehand and recovered no buy money on CI.
- After Irvin’s arrest, police found a phone in his possession that rang when officers called the number the CI had used; the car keys in his possession opened the Hyundai; a search of the vehicle produced wax baggies and a rental agreement (vehicle rented to another person).
- Irvin did not testify; he challenged the CI’s absence, lack of direct eyewitness evidence of the exchange, absence of preserved texts/call records, and lack of forensic evidence linking him to the packaged heroin.
- Trial court sentenced Irvin to consecutive terms totaling 54–120 months (two consecutive 27–60 month terms); post-sentence motions to modify sentence and to obtain RRRI eligibility were denied.
- On appeal the Superior Court affirmed convictions and most of the sentence ruling but vacated and remanded for reconsideration of RRRI eligibility because the court concluded a single past felony‑one burglary conviction did not automatically establish a “history of violent behavior.”
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Weight of the evidence | Verdict shocks sense of justice because no direct eyewitness testimony, CI didn’t testify, gaps in phone/text evidence, and weak physical evidence linking Irvin to buys | Circumstantial evidence (CI identification, vehicle surveillance, phone/fob linkage, recovered heroin) sufficiently credible for jury | Denied; trial court did not abuse discretion; verdict not against weight of evidence |
| Discretionary sentencing (manifest excessiveness) | Sentence excessive; court focused only on offense gravity and ignored mitigation; should not have run consecutive sentences for two buys close in time | Court considered offense gravity, public protection, defendant’s recidivism, and rehabilitative needs; sentenced within discretion | Denied; no abuse of discretion in imposing consecutive 27–60 month terms |
| Waiver of argument about failure to arrest after first buy | Court should consider that officer could have arrested after first buy, making consecutive sentence unreasonable | Argument not raised at sentencing or in post‑sentence motion | Waived; Superior Court will not consider it on appeal |
| RRRI eligibility based on past felony‑one burglary | Single past burglary does not involve violence here; RRRI should include first‑time violent offenders | Commonwealth relied on language excluding those with a history of violent behavior; Chester held burglary is violent behavior | Trial court erred: following Cullen‑Doyle, a single past conviction for felony‑one burglary does not necessarily constitute a "history of violent behavior" under 61 Pa.C.S. §4503(1); vacated and remanded to reconsider RRRI eligibility |
Key Cases Cited
- Commonwealth v. Lyons, 79 A.3d 1053 (Pa. 2013) (standard for reviewing weight-of-evidence claims)
- Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007) (standards and factors for reviewing sentencing reasonableness)
- Commonwealth v. Cullen‑Doyle, 164 A.3d 1239 (Pa. 2017) (single present conviction for violent crime does not automatically constitute a history of violent behavior for RRRI ineligibility)
- Commonwealth v. Chester, 101 A.3d 56 (Pa. 2014) (first‑degree burglary constitutes violent behavior under §4503)
- Commonwealth v. Caldwell, 117 A.3d 763 (Pa. Super. 2015) (what constitutes a substantial question for appellate review of discretionary sentencing)