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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

SHANE AMEE WALDEN

                            Appellant                  No. 1603 EDA 2015


            Appeal from the Judgment of Sentence March 20, 2015
            In the Court of Common Pleas of Northampton County
             Criminal Division at No(s): CP-48-CR-0002666-2014


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                            FILED FEBRUARY 16, 2016

        Shane Amee Walden brings this appeal from the judgment of sentence

imposed on March 20, 2015, in the Court of Common Pleas of Northampton

County.     A jury found Walden guilty of possession with intent to deliver

(PWID) cocaine.1       The trial court sentenced Walden to 12 to 24 months’

incarceration, followed by five years’ state probation. In this appeal, Walden

challenges the sufficiency and weight of the evidence.         Based upon the

following, we affirm.

        The trial court has summarized the evidence presented at trial, as

follows:

              Detective Jason Hillis (“Detective Hillis”) testified that on
        July 20, 2014, he responded to a call of shots fired in the area of
____________________________________________


1
    35 P.S. § 780-113(a)(30).
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     15th and Washington Streets in the City of Easton. Upon arriving
     at the scene, Detective Hillis observed a group of people pointing
     to where [Walden] was sitting by a tree because he suffered a
     gunshot wound and was bleeding. [N.T. at 143:14-20, February
     3, 2015; N.T., at 147:16–148:24]. Detective Hillis then testified
     that after observing [Walden,] he went back to the scene,
     examined the area, and observed a trail of blood starting from
     the porch of a home located at 1505 Washington Street and
     leading in a westerly direction down the sidewalk.         [Id. at
     149:22–150:7; 151:5-21]. Along the blood trail, Detective Hillis
     observed a package of suspected cocaine, which he took
     possession of in accordance with the chain of custody. [Id. at
     152:18–154:5]. The blood trail ended at the location where
     [Walden] was laying. [Id. at 151:14-21].

            After Detective Hillis and the other responding officers
     secured the crime scene and the suspected cocaine, Sergeant
     Marc Crisafulli (“Sergeant Crisafulli”) went to St. Luke’s Hospital
     in Fountain Hill, to speak with [Walden]. [N.T. at 231:15-24,
     February 4, 2015]. [Walden] reported that he had been shot as
     he sat on the porch of 1505 Washington Street, and he further
     reported that immediately following the shooting, he had
     traveled in a westerly direction, until he collapsed at the location
     where the blood trail ended. However, he refused to disclose the
     identity of his shooter. [Id. at 232:11–233:6]. The testimony
     also revealed that after leaving the hospital, Sergeant Crisafulli
     reviewed the footage from a Police Department camera located
     at 15th and Washington Streets, at which time he was able to
     observe the incident, including [Walden] drop a bag in the same
     location where the cocaine had been collected. [Id. at 233:19–
     234:14; 240:23–241:10]. That same footage was shown to the
     jury at trial.

           Finally, the testimony of Brendan McCann (“McCann”), who
     tested the substance, established that the substance weighed
     just over nine (9) grams and it tested positive for cocaine. [N.T.
     at 113:7-18, February 3, 2015; N.T. at 113:22–114:16; 117:9–
     119:15; 123:8-17; 119:16-18; 121:22–122:12; 223:20–
     225:21; 226:21–227:20]. The jury also heard the testimony of
     Detective Anthony Arredondo (“Detective Arredondo”), who
     explained that possession with intent to deliver a controlled
     substance is generally differentiated from simple possession by
     circumstances including the quantity and weight of the drugs, a
     lack of user paraphernalia or possession of user paraphernalia,

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       and the nature of the area in which the drugs are found [N.T. at
       247:16–248:7; 248:11-25, February 4, 2015]. Detective
       Arredondo further testified that the circumstances of the instant
       case, including the age of [Walden], the quantity and weight of
       the drugs, and the packaging of the drugs, militated in favor of
       the conclusion that [Walden] possessed the drugs for delivery.
       [Id. at 250:16–251:11].

Trial Court Opinion, 6/24/2015, at 6–7.           Walden was convicted and

sentenced as stated above. This appeal followed.2

       Walden first challenges the sufficiency of the evidence.              The

Commonwealth, however, asserts that Walden has waived this issue, as he

did not directly raise any sufficiency claim in his Pa.R.A.P. 1925(b)

Statement.

       In his Rule 1925(b) Statement, Walden alleged that “the weight of the

evidence presented at trial was insufficient to prove a guilty verdict of

Possession With Intent to Deliver Cocaine (F), 35 P.S. § 780-113(a)(30).”

Walden’s Rule 1925(b) Statement, 6/9/2015, at 2.         This vague allegation

appears to challenge only the weight — not the sufficiency — of the

evidence. Indeed, the trial court interpreted this claim strictly as a challenge

to the weight of the evidence, and addressed the issue as a weight claim. 3

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2
 Walden timely complied with the order of the trial court to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal.
3
  We note the trial court did state, as part of its analysis of the weight of the
evidence claim, that there was sufficient evidence presented to support the
jury’s verdict. See Trial Court Opinion, 6/24/2015, at 5–6.




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As such, we agree with the Commonwealth that a finding of waiver

regarding the issue of the sufficiency of the evidence is warranted.        See

Commonwealth v. Johnson, 51 A.3d 237, 246–247 (Pa. Super. 2012) (en

banc) (finding waiver of issues not specifically raised in Rule 1925(b)

statement). See also Commonwealth v. Garang, 9 A.3d 237, 246 (Pa.

Super. 2010) (“[W]hen challenging the sufficiency of the evidence on

appeal, the Appellant’s 1925 statement must specify the element or

elements upon which the evidence was insufficient in order to preserve the

issue for appeal.”) (quotations and citation omitted).

      In any event, were we to address Walden’s sufficiency claim, we would

find it to be meritless. Our standard of review of sufficiency claims is well-

settled:

      A claim challenging the sufficiency of the evidence is a question
      of law. Evidence will be deemed sufficient to support the verdict
      when it establishes each material element of the crime charged
      and the commission thereof by the accused, beyond a
      reasonable doubt. Where the evidence offered to support the
      verdict is in contradiction to the physical facts, in contravention
      to human experience and the laws of nature, then the evidence
      is insufficient as a matter of law. When reviewing a sufficiency
      claim[,] the court is required to view the evidence in the light
      most favorable to the verdict winner giving the prosecution the
      benefit of all reasonable inferences to be drawn from the
      evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

      The elements of PWID are set forth by statute as follows.

      § 780-113. Prohibited acts; penalties

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      (a) The following acts and the causing thereof within the
      Commonwealth are hereby prohibited:

         ...

         (30) Except as authorized by this act, the manufacture,
         delivery, or possession with intent to manufacture or
         deliver, a controlled substance by a person not
         registered under this act, or a practitioner not registered
         or licensed by the appropriate State board, or knowingly
         creating, delivering or possessing with intent to deliver,
         a counterfeit controlled substance.

35 P.S. § 780-113(a)(30).

      To sustain a conviction for PWID, the Commonwealth must prove
      both the possession of the controlled substance and the intent to
      deliver the controlled substance. If the contraband is not found
      on the appellant’s person, the Commonwealth must prove that
      the appellant had constructive possession of the contraband,
      which has been defined as the ability and intent to exercise
      control over the substance. The Commonwealth may establish
      constructive   possession     through   the    totality of   the
      circumstances.

Commonwealth v. Estepp, 17 A.3d 939, 944 (Pa. Super. 2011) (quotation

and citations omitted).

      While Walden divides his sufficiency discussion into two subparts, the

gist of both parts of the         argument appears        to   be    only that the

Commonwealth’s      proof   was   insufficient   to   establish     the   element   of

possession.    We find no merit in this argument.

      Contrary to Walden’s assertion set forth in subpart A of his sufficiency

challenge, that “the video did not show [Walden] and no one was able to




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identify him on the scene in the video,”4 Walden was, at trial, identified in

the video by Detective Jason Hillis and Sergeant Marc Crisafulli as the person

discarding a baggie in the same place where a baggie with 52 individual

packets of cocaine was recovered by police. See N.T., 2/3/2015, at 162–

163; N.T., 2/4/2015, at 181, 208–209, 211, 213–214, 221, 226, 229, 234,

240–241.       Further, Walden’s bald statement in subpart B that “the

Commonwealth failed to link him as the owner or the person who possessed

the drugs with intent to deliver the drugs” 5 ignores the video footage and

above-referenced testimony.           It also ignores the testimony of Hillis and

Crisafulli that the drugs were found in the street by a trail of blood that ran

from the porch at 1505 Washington Street and went west down the

sidewalk, leading to Walden, who was found bleeding and laying by a tree.

See N.T., 2/3/2015, at 151–153; N.T., 2/4/2015 at 188, 228–229. In this

regard, Walden, in a police interview, confirmed his presence at the scene

and his path of travel, running west from the porch where the shooting

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4
    Walden’s Brief at 12 (unnumbered).
5
 The entire argument presented in subsection B of Walden’s sufficiency
challenge is as follows:

        [Walden] had a jury trial and during the presentation of its
        evidence the Commonwealth failed to link [Walden] as the owner
        or the person who possessed the drugs with intent to deliver the
        drugs.

Walden’s Brief at 13 (unnumbered).



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occurred, down the sidewalk, then into the street, and back towards the

sidewalk where he collapsed. See N.T., 2/4/2015, at 232–234. Accordingly,

we conclude Walden’s sufficiency argument, even if preserved, would

warrant no relief.

      Next,   Walden   challenges   the   weight   of   the   evidence.      The

Commonwealth takes the position this claim is waived.         We agree.      Our

review confirms that Walden has waived this matter by failing to raise it in a

post-sentence motion, or by a written or oral motion prior to sentencing.

See Pa.R.Crim.P. 607(A).    Further, the fact the trial court addressed this

claim in its Pa.R.A.P. 1925(a) opinion does not overcome waiver.          As this

Court, in Commonwealth v. Thompson, 93 A.3d 478 (Pa. Super. 2014),

explained:

         [A] weight of the evidence claim must be preserved
         either in a post-sentence motion, by a written motion
         before sentencing, or orally prior to sentencing.
         Pa.R.Crim.P. 607; Commonwealth v. Priest, 2011 PA
         Super 85, 18 A.3d 1235, 1239 (Pa. Super. 2011). Failure
         to properly preserve the claim will result in waiver, even
         if the trial court addresses the issue in its opinion.
         Commonwealth v. Sherwood, 603 Pa. 92, 982 A.2d
         483, 494 (Pa. 2009).

      Commonwealth v. Lofton, 2012 PA Super 267, 57 A.3d 1270,
      1273 (Pa. Super. 2012).

      Appellant is mistaken in his belief that the trial court’s
      addressing of the merits of his weight claim in its Rule 1925(a)
      opinion permits us to review the claim. “[A]ppellate review [of a
      weight claim] is limited to whether the trial court palpably
      abused its discretion....” Commonwealth v. Champney, 574
      Pa. 435, 832 A.2d 403, 408 (Pa. 2003). Here, the trial court
      never ‘ruled’ on the issue and, therefore, it could not grant nor

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     deny the claim at the time it was first raised by Appellant in his
     concise statement. Although the court addressed the issue’s
     merits in its Rule 1925(a) opinion, the trial court was, by that
     time, divested of jurisdiction to take further action in the case.
     See Pa.R.A.P. 1701(a) “Except as otherwise prescribed by these
     rules, after an appeal is taken or review of a quasijudicial order
     is sought, the trial court or other government unit may no longer
     proceed further in the matter.”). Thus, the trial court was never
     given the opportunity to provide Appellant with relief and,
     consequently, there is no discretionary act that this Court could
     review. Appellant’s weight of the evidence claim is waived.

Thompson, 93 A.3d at 490–491.         Accordingly, we deem Walden’s weight

claim waived.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/16/2016




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