Com. v. Barnett, W. ( 2018 )

J-S68028-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM L. BARNETT :
:
Appellant : No. 456 WDA 2018
Appeal from the Judgment of Sentence February 20, 2018
In the Court of Common Pleas of Cambria County Criminal Division at
No(s): CP-11-CR-0001387-2016
BEFORE: SHOGAN, J., DUBOW, J., and STEVENS, P.J.E.*
JUDGMENT ORDER BY DUBOW, J.: FILED DECEMBER 31, 2018
Appellant, William L. Barnett, appeals from the Judgment of Sentence
entered in the Cambria County Court of Common Pleas following his jury
conviction of Possession With Intent to Deliver (“PWID”) and Intentional
Possession of a Controlled Substance by a Person Not Registered.1 On appeal,
Appellant challenges the weight of the evidence. After careful review, we
affirm.
The underlying facts of this case are largely immaterial to our
disposition. Briefly, on March 31, 2016, officers with the Cambria County Drug
Task Force arrested Appellant following a controlled drug-buy. On January
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1 35 P.S. § 780-113(a)(30) and 35 P.S. § 780-113(a)(16), respectively.
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* Former Justice specially assigned to the Superior Court.
J-S68028-18
17, 2018, a jury convicted Appellant of the above offenses, and acquitted him
of one count of Criminal Use of a Communication Facility.2
On February 20, 2018, the court sentenced Appellant to an aggregate
sentence of 21 to 42 months’ incarceration. Appellant did not file a Post-
Sentence Motion. This timely appeal followed.
Both Appellant and the trial court complied with Pa.R.A.P. 1925. In his
Rule 1925(b) Statement, Appellant challenged the weight and sufficiency of
the evidence in support of his conviction.
Appellant’s sole claim on appeal, however, is that the jury’s verdict was
against the weight of the evidence. Appellant’s Brief at 9-10. Before we reach
the merits of this claim, we must determine whether Appellant has preserved
it.
A weight of the evidence claim must be raised before the trial court
pursuant to Pa.R.Crim.P. 607(A).3 Our review of the record reveals that
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2 18 Pa.C.S. § 7512(a).
3 A claim that a verdict is against the weight of the evidence must be raised
in a motion for a new trial either (1) orally on the record, before sentencing;
(2) in a written pre-sentence motion; or (3) in a post-sentence motion.
Pa.R.Crim.P. 607(A). As noted above, there is no indication in the record
Appellant raised his weight of the evidence claim in compliance with Rule 607.
It appears Appellant first challenged the weight of the evidence claim in his
Rule 1925(b) statement, which is insufficient for preserving it for appellate
review. See Commonwealth v. Sherwood, 982 A.2d 483 (Pa. 2009). In
Sherwood, the Supreme Court noted:
Regarding [a]ppellant’s weight of the evidence claim[,] we note
that [a]ppellant did not make a motion raising a weight of the
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J-S68028-18
Appellant did not timely and properly raise the weight of the evidence issue
before the trial court, either orally on the record before sentencing, in a written
pre-sentence motion, or in a post-sentence motion. The claim is, therefore,
waived.4
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/31/2018
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evidence claim before the trial court as the Pennsylvania Rules of
Criminal Procedure require. See Pa.R.Crim.P. 607(A). The fact
that [a]ppellant included an issue challenging the verdict on
weight of the evidence grounds in his 1925(b) statement and the
trial court addressed [a]ppellant’s weight claim in its Pa.R.A.P
1925(a) opinion did not preserve his weight of the evidence claim
for appellate review in the absence of an earlier motion.
Id. at 494 (footnote omitted).
4 We also note that Appellant failed to comply with Rules 2117(c) and 2119(e).
Nowhere did Appellant state how and when he raised the weight of evidence
claim or how the trial court addressed it.
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