Com. v. Riley, L., Jr.
1972 MDA 2016
| Pa. Super. Ct. | Dec 14, 2017Background
- On May 6, 2014 a confidential informant (CI) called a target known as "Mac" to buy ten packs of heroin; police provided $70 buy money and surveilled the transaction.
- A black Chrysler 300 with temporary tags arrived; Appellant (identified at trial as "Mac") appeared as a passenger. The CI later entered the rear passenger seat and left with ten glassine bags that tested positive for .28 g heroin.
- Officers maintained surveillance but did not visually observe a clear hand-to-hand exchange through tinted windows; the CI did not testify.
- Less than a month later, police seized a phone from Appellant that contained texts using the nicknames "Mac/Omizz," arranging meetings at the same location and showing a number change shortly after May 6.
- Appellant was convicted after a nonjury trial of delivery of a controlled substance and criminal use of a communication facility; he was sentenced to consecutive terms totaling 39 to 78 months.
- Appellant sought nunc pro tunc relief, raised insufficiency and weight-of-evidence claims and a discretionary-sentencing claim on appeal; the Superior Court affirmed.
Issues
| Issue | Appellant's Argument | Commonwealth's/Trial Court's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for 18 Pa.C.S. § 7512 (use of a communication facility) | Riley: phone seized had a different number than the one CI called; no direct proof he owned/used the called number or that the CI called him | Circumstantial evidence (CI called "Mac," Appellant was known as "Mac/Omizz," Appellant appeared at meeting spot, texts on his phone used the nicknames and referenced the location) supports inference he used a communication facility | Court held evidence sufficient for § 7512 conviction based on circumstantial proof |
| Weight of the evidence (delivery) | Riley: inconsistent officer testimony; no direct hand-to-hand observation; CI untested for concealment; third person in vehicle could have delivered drugs; phone texts unauthenticated | Trial court: surveillance, pre- and post-searches, CI left with heroin, officers’ testimony credible; circumstantial evidence sufficient; constructive delivery theory applies | Court held no abuse of discretion in denying new trial — verdict not against the weight of the evidence |
| Authentication of text messages | Riley: Commonwealth failed to prove he authored texts or owned the number; counsel did not object | Commonwealth: texts used Riley’s known nicknames and referenced the same meeting place, which suffices for circumstantial authentication | Court held texts were properly given evidentiary weight for identification purposes |
| Discretionary aspects of sentencing (consecutive terms) | Riley: aggregate sentence excessive; court failed to consider rehabilitative needs; sentences should run concurrently | Trial court applied guideline ranges, considered factors, exercised discretion; consecutive sentences permitted and not unduly harsh given offenses | Court held appellant failed to raise a substantial question; declined to disturb sentence |
Key Cases Cited
- Commonwealth v. Storey, 167 A.3d 750 (Pa. Super. 2017) (circumstantial evidence may sustain drug-related convictions)
- Commonwealth v. Moss, 852 A.2d 374 (Pa. Super. 2004) (elements of criminal use of a communication facility)
- Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013) (standards for weight-of-the-evidence review and trial court discretion)
- Commonwealth v. Murphy, 795 A.2d 1025 (Pa. Super. 2002) (definitions of delivery and constructive transfer)
- In re F.P., 878 A.2d 91 (Pa. Super. 2005) (circumstantial authentication of writings/texts can suffice)
- Commonwealth v. Austin, 66 A.3d 798 (Pa. Super. 2013) (when consecutive sentencing raises a substantial question)
- Commonwealth v. Hoag, 665 A.2d 1212 (Pa. Super. 1995) (no entitlement to "volume discounts" for multiple offenses; consecutive sentences permissible)
- Commonwealth v. Leatherby, 116 A.3d 73 (Pa. Super. 2015) (four-part test for appellate review of discretionary sentencing)