Com. v. Greer, J., Sr.

J. S12044/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JAMES E. GREER, SR., : No. 573 MDA 2017
:
Appellant :
Appeal from the Judgment of Sentence, February 28, 2017,
in the Court of Common Pleas of York County
Criminal Division at No. CP-67-CR-0007036-2015
BEFORE: LAZARUS, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 10, 2018
James E. Greer, Sr., appeals from the February 28, 2017 judgment of
sentence entered in the Court of Common Pleas of York County following his
conviction in a jury trial of possession with intent to deliver a controlled
substance (heroin) (“PWID”).1 The trial court imposed a sentence of
imprisonment of 11½ to 23 months. We affirm.
The trial court provided the following factual history:
On January 19, 2017, Officer Zachary Pelton took
the stand and testified that this case involved a
confidential informant (hereinafter: CI) who received
payment. At Pelton’s instruction, the CI placed a
phone call to 717-758-[XXXX], which was a number
supplied by the CI. Officer Pelton heard a male voice
on the other end of the phone call and, at the
conclusion of that call, was left with the expectation
that the CI was to proceed to Li’s Kitchen to
1 35 P.S. § 780-113(a)(30).
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purchase heroin. The CI referred to the caller by the
street name of “Supreme.” Officer Pelton proceeded
to search the CI’s pockets and any other places in
which small objects could be secreted. No strip
search was performed because, as Officer Pelton
opined, if the CI were to have reached any place
intimate then that would have raised red flags for
the officers. Following the search, the CI was turned
over to Detective Shaffer and, up to this point, the
CI was never out of Pelton’s view or control. Shaffer
provided official funds and transported [sic] the meet
location. Pelton also proceeded to the location
where he set up surveillance. Despite having a clear
and unobstructed view, Officer Pelton never saw the
CI meet with anyone, nor did he observe the CI;
however, after the operation, Detective Shaffer
turned over $20.00 of official funds and 2 yellow
glassine baggies containing heroin. The parties
stipulated that, if called to testify, Nicole Blasovich,
of the Pennsylvania State Bureau of Police Forensic
Services, would testify that the baggies contained
heroin. No fingerprinting or DNA analysis was
performed in this case and the CI and Detective
Shaffer were not wearing gloves. Furthermore, the
initiating phone call was not recorded, nor was the
CI wearing a wire.
On cross-examination, Officer Pelton testified that it
was his believe [sic] that the CI, an addict, was clean
at the time of the transaction, but that drug testing
was not performed to confirm this. Additionally, it
was established on cross-examination that
[a]ppellant is not “Supreme[.]” The phone that was
called by the CI was believed to belong to
Darryl Austin who is “Supreme.” Finally, during
cross, Officer Pelton testified that he had made sure
there was no money on the CI before the CI was
supplied with official funds.
The next witness to take the stand was
Detective Andrew Shaffer who testified that his role
was to transport the CI during the operation. Having
received the CI from Officer Pelton following the
search of the CI, Shaffer stated that the CI was
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never out of his control. Shaffer gave the CI $40.00
of official funds.[Footnote 2] Shaffer then
transported the CI to the meet location in Shaffer’s
vehicle, which was searched prior to the operation.
Once on scene and the CI was released from
Shaffer’s vehicle, Shaffer was able to see the CI
walking the whole way. Detective Shaffer told the
jury that the CI was observed at all times by himself
or Detective Nadzom. Detective Shaffer also told the
jury that he never observed the CI to meet anyone
else, pick anything up off of the ground, or shift his
clothing while proceeding to and returning from the
meeting. Shaffer did not see the actual
hand-to-hand exchange. However, upon the CI’s
return to Detective Shaffer, the CI handed over
2 baggies of suspected heroin and $20.00 of the
$40.00 that Shaffer had previously given to the CI.
Finally, Detective Shaffer stated that the CI was
never out of his control before or after Shaffer
turned over the suspected heroin to Officer Pelton.
[Footnote 2] Earlier in his testimony,
Detective Shaffer reported that he had
given the CI $20.00 of official funds.
However, at a later point in his
testimony, Shaffer stated that this was a
mistake and he had initially given the CI
$40.00 of official funds.
The third and final Commonwealth witness was
Detective Scott Nadzom who testified that he
performed surveillance for this buy-walk. Nadzom
stated that he had a clear and unobstructed view of
Li’s Kitchen. Nadzom testified that Shaffer advised
him over the radio when the CI exited the vehicle
and, thereafter, Nadzom observed the hand-to-hand
transaction between the CI and [a]ppellant.
Detective Nadzom stated that the only person the CI
had contact with was [a]ppellant. In fact, Nadzom
never saw the CI meet with anyone else, pick
anything up, or fuss about his own clothing at any
point during the operation. According to Nadzom,
the CI was under constant observation by law
enforcement. Nadzom then introduced photos he
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had taken of [a]ppellant on the day in question.
Nadzom stated that the photos were only taken for
identification purposes and that he observed the
hand-to-hand transaction with his naked eyes and
binoculars. On cross-examination, Nadzom admitted
that he never saw actual packets passed between
[a]ppellant and the CI.
Trial court opinion, 9/6/17 at 2-5 (citations to notes of testimony omitted).
The trial court set forth the following procedural history:
On January 20, 2017, a jury of [a]ppellant’s peers
found him guilty of [PWID]. On February 28, 2017,
[a]ppellant was sentenced to eleven-and-one-half to
twenty[-]three months of incarceration plus the
costs of prosecution. On March 1, 2017, Jennifer M.
Smith was appointed to represent [a]ppellant for
purposes of appeal. On March 30, 2017, [a]ppellant
filed a Notice of Appeal of the Sentence of
February 28, 2017. By way of an Order docketed on
April 3, 2017, pursuant to the Pennsylvania Rules of
Appellate Procedure, Rule 1925(b), [a]ppellant was
directed to file a statement of matters complained of
on appeal. [] Appellant filed his manifestly untimely
Statement of Errors Complained of Pursuant to
1925(b) on June 28, 2017. We nonetheless treat
this filing as timely in light of Attorney Smith’s
post-sentencing appointment and the unavailability
of the trial transcript until the period for a timely
statement of matters had already lapsed. The
[c]ourt is all too aware of the difficulty occasioned by
familiarizing oneself with a case via a cold transcript.
Id. at 1-2 (footnote 1 omitted). The record reflects that the trial court filed
its Rule 1925(a) opinion on September 6, 2017.
Appellant raises the following issues for our review:
I. Whether the Commonwealth presented
sufficient evidence to support appellant’s
delivery of heroin conviction?
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II. Whether the weight of the evidence presented
by the Commonwealth was sufficient to
support appellant’s delivery of heroin
conviction?
Appellant’s brief at 5 (full capitalization omitted).
Appellant first challenges the sufficiency of the evidence to sustain his
PWID conviction. It is well settled that when challenging the sufficiency of
the evidence on appeal, that in order to preserve that issue for appeal, an
appellant’s Rule 1925(b) statement must specify the element or elements
upon which the evidence was insufficient. Commonwealth v. Gibbs, 981
A.2d 274, 281 (Pa.Super. 2009), appeal denied, 3 A.3d 670 (Pa. 2010)
(citation and internal quotation marks omitted).
In his Rule 1925(b) statement, appellant frames his sufficiency
challenge as follows: “Whether there was sufficient evidence presented at
trial for a conviction.” (Appellant’s “statement of errors complained of on
appeal pursuant to 1925(b),” 7/28/17 at 1, ¶ 1 (full capitalization omitted).)
Because appellant failed to specify the element or elements upon which he
now claims the evidence was insufficient, appellant waives this issue on
appeal. See Gibbs, 981 A.2d at 281.
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Nevertheless, we note that a reading of appellant’s eight-sentence
argument on this issue2 reveals that appellant challenges the credibility of
the police officers involved in the undercover operation. (Appellant’s brief at
9.) In so doing, appellant challenges the weight of the evidence, not its
sufficiency. See, e.g., Commonwealth v. Wilson, 825 A.2d 710, 713-714
(Pa.Super. 2003) (a review of the sufficiency of the evidence does not
include a credibility assessment; such a claim goes to the weight of the
evidence); Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa.Super.
1997) (the fact-finder makes credibility determinations, and challenges to
those determinations go to the weight of the evidence, not the sufficiency of
the evidence).
In his second issue on appeal, appellant raises a weight of the
evidence claim. In order to raise a weight claim on appeal, however,
Pennsylvania Rule of Criminal Procedure 607 requires an appellant to raise
the claim with the trial judge in a motion for a new trial “(1) orally, on the
record, at any time before sentencing; (2) by written motion at any time
2 We further note that appellant failed to provide any record citations to
support his claim. Notwithstanding appellant’s failure to preserve this issue
in his Rule 1925(b) statement which resulted in waiver of the issue on
appeal, appellant’s failure to provide record citations to support his claim
would also result in waiver. See Pa.R.A.P. 2119(c); see also
Commonwealth v. Einhorn, 911 A.2d 960, 970 (Pa.Super. 2006)
(reiterating that an appellate brief must provide record citations and
citations to any relevant supporting authority, that this court will not become
the counsel for an appellant, and that this court will not consider issues that
are not fully developed in the brief (citation omitted)).
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before sentencing; or (3) in a post-sentence motion.” Pa.R.Crim.P. 607(A).
“The purpose of this rule is to make it clear that a challenge to the weight of
the evidence must be raised with the trial judge or it will be waived.”
Pa.R.Crim.P. 607, comment.
Our review of the certified record before us reveals that appellant
failed to raise his weight claim with the trial court in a motion for a new trial
orally, on the record, prior to sentencing; by written motion prior to
sentencing; or in a post-sentence motion. Accordingly, appellant waives his
weight claim on appeal.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/10/2018
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