J-S58034-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SALINA MICHELLE GARLAND                    :
                                               :
                       Appellant               :   No. 719 WDA 2019

         Appeal from the Judgment of Sentence Entered May 31, 2017
     In the Court of Common Pleas of Cambria County Criminal Division at
                       No(s): CP-11-CR-0002357-2015


BEFORE: PANELLA, P.J., BENDER, P.J.E., and DUBOW, J.

MEMORANDUM BY DUBOW, J.:                            FILED DECEMBER 19, 2019

       Appellant, Salina Michelle Garland, appeals from the Judgment of

Sentence imposed by the Cambria County Court of Common Pleas after a jury

convicted her of Manufacture, Delivery, or Possession with Intent to

Manufacture or Deliver a Controlled Substance; Intentional Possession of a

Controlled Substance; and Criminal Use of a Communication Facility.1

Appellant challenges the sufficiency and weight of the evidence in support of

her convictions, and the discretionary aspects of her sentence. After careful

review, we affirm.

       The relevant facts, as gleaned from the certified record, are as follows.

Cambria County Drug Task Force (“CCDTF”) Agent Thomas Keirn arranged a

controlled narcotics purchase, in which Undercover Narcotics Agent Thomas
____________________________________________


1 35 P.S. § 780-113(a)(30); 35 P.S. § 780-113(a)(16); and 18 Pa.C.S. §
7512(a), respectively.
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Moore accompanied a confidential informant (“CI”) to purchase heroin from

Appellant.

        On March 4, 2015, the CI called Appellant to purchase 10 stamp bags

of heroin. They agreed to complete the purchase at a residence located at 112

Sheridan Street in Johnstown. Agent Moore drove the CI to the residence and

gave the CI $100 to make the purchase.2 When they entered the residence’s

living room, Appellant requested the $100, which the CI gave to her. Appellant

then made a phone call. She advised the CI and Agent Moore that she could

provide only 9 stamp bags of heroin; they agreed to purchase 9 bags for the

$100.

        Approximately 20 minutes after Appellant’s phone call, a white Kia

automobile arrived at 112 Sheridan Street. The individual in the Kia entered

the residence for a couple minutes. After the individual left, Appellant gave

the CI 8 bags of heroin; Appellant kept one bag as additional payment.

        The CI and Agent Moore then left the residence. The CI gave Agent

Moore the 8 bags of heroin, which were sent to the Pennsylvania State Police

Crime Lab for testing. A forensic analysis revealed that the 8 bags contained

a total of 0.14 grams of heroin.

        Appellant was arrested in November 2015. Her jury trial on the above

charges commenced on March 15, 2017. At trial, the Commonwealth

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2Agent Keirn photocopied five $20 bills to record the money’s serial numbers.
He then gave the $100 to Agent Moore for the controlled purchase.



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presented the testimony of, inter alia, the agents and detectives involved in

the March 4, 2015 controlled narcotics purchase—Agent Moore, Agent Keirn,

Detective Bernard, and Detective Arcurio.3 The jury convicted Appellant of the

above offenses. The trial court ordered the preparation of a Presentence

Investigation (“PSI”) Report prior to sentencing.

        On May 31, 2017, after hearing testimony and argument from counsel,

and reviewing the PSI Report, the court sentenced Appellant to an aggregate

term of 16 to 120 months of incarceration. Appellant initially filed a pro se

Post-Sentence Motion, which the court improperly treated as a petition filed

under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. After this Court

reinstated Appellant’s post-sentence rights nunc pro tunc, newly appointed

counsel filed a timely Post-Sentence Motion. The court denied Appellant’s

Motion.

        Appellant filed a timely Notice of Appeal. Both Appellant and the trial

court complied with Pa.R.A.P. 1925.

        Appellant presents the following issues for our review, reordered for

ease of disposition:

        1. The Appellant’s conviction for one count of Intentional
           Possession of Controlled Substance by a Person Not Registered
           (35 Pa.C.S.A. § 780-113(A)(16) (M)[)]; Manufacture, Delivery,
           or Possession [w]ith Intent to Manufacture or Deliver (35
           Pa.C.S.A. § 780[]-113(A)(30)(F)[)]; and Criminal Use of a
           Communication Facility (18 Pa.C.S.A. § 7512(A) (F-2)[)] was


____________________________________________


3   The CI did not testify in order to protect his/her identity.

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         against the weight and sufficiency of evidence presented at trial
         by the Commonwealth.

      2. The Appellant’s sentence was excessive in light of the evidence
         presented at trial, which shows that the drugs allegedly in her
         possession was more synonymous with possession as opposed
         to delivery.
Appellant’ Br. at 5.

      In her first issue, Appellant challenges the sufficiency of the evidence

supporting her convictions. “A claim challenging the sufficiency of the evidence

is a question of law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa.

2000). “We review claims regarding the sufficiency of the evidence by

considering whether, viewing all the evidence admitted at trial in the light

most favorable to the verdict winner, there is sufficient evidence to enable the

fact-finder to find every element of the crime beyond a reasonable doubt.”

Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (internal

quotation marks and citations omitted). “Further, a conviction may be

sustained wholly on circumstantial evidence, and the trier of fact—while

passing on the credibility of the witnesses and the weight of the evidence—is

free to believe all, part, or none of the evidence.” Id. “In conducting this

review, the appellate court may not weigh the evidence and substitute its

judgment for the fact-finder.” Id.

      To sustain a conviction for Intentional Possession of a Controlled

Substance, the Commonwealth must prove that Appellant “[k]nowingly or

intentionally possess[ed] a controlled or counterfeit substance[.]” 35 P.S.

§ 780-113(a)(16).

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       To sustain a conviction for Manufacture, Delivery, or Possession with

Intent to Manufacture or Deliver a Controlled Substance, the Commonwealth

must prove, inter alia, that a defendant delivered a controlled substance

without proper authorization. 35 P.S. § 780-113(a)(30).4 Delivery is defined

as “the actual, constructive, or attempted transfer from one person to another

of a controlled substance[.]” 35 PS. § 780–102. “A defendant actually

transfers drugs whenever [s]he physically conveys drugs to another

person.” Commonwealth v. Murphy, 844 A.2d 1228, 1234 (Pa 2004).

“Section 780–113(a)(30) does not require that a party make a profit, it simply

prohibits ‘delivery.’” Commonwealth v. Morrow, 650 A.2d 907, 912 (Pa.

Super. 1994). Additionally, “[t]he amount of the controlled substance is not

‘crucial to establish an inference of possession with intent to deliver[.]’”

Commonwealth v. Ratsamy, 934 A.2d 1233, 1237 (Pa. Super. 2007)

(citation omitted). The court views the totality of circumstances when

evaluating whether a defendant committed Manufacture, Delivery, or

Possession with Intent to Manufacture or Deliver a Controlled Substance. Id.

       The Crimes Code has defined the offense of Criminal Use of a

Communication Facility, in relevant part, as follows:

       A person commits a felony of the third degree if that person uses
       a communication facility to commit, cause or facilitate the
       commission or the attempt thereof of any crime which constitutes
       a felony under this title or under the act of April 14, 1972 (P.L.
____________________________________________


4A violation of 35 P.S. § 780-113(a)(30) involving heroin is a felony. 35 P.S.
§ 780-113(f).

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      233, No. 64) known as The Controlled Substance, Drug, Device
      and Cosmetic Act. Every instance where the communication
      facility is utilized constitutes a separate offense under this section.

18   Pa.C.S.    §   7512(a).     The   term   “communication     facility”   includes

telephones. Id. at Section 7512(b). To sustain a conviction for Criminal Use

of a Communication Facility, “the Commonwealth must prove beyond a

reasonable doubt that: (1) Appellant knowingly and intentionally used a

communication facility; (2) Appellant knowingly, intentionally or recklessly

facilitated    an   underlying    felony;     and   (3)   the   underlying     felony

occurred.” Commonwealth v. Moss, 852 A.2d 374, 381 (Pa. Super. 2004).

      Instantly, the Commonwealth presented evidence that on March 4,

2015, the CI called Appellant on a telephone, met with Appellant, provided

money to Appellant, obtained heroin from Appellant, and turned the heroin

over to the police. Agent Moore observed the CI make the phone call to

Appellant and was present during the heroin transaction, and offered his

testimony at trial. Agent Keirn also testified about arranging the controlled

buy with the CI and Appellant, his witnessing the CI call Appellant on March

4, 2015 to arrange the heroin transaction, and his surveillance of 112 Sheridan

Street on March 4, 2015.

      Viewing the evidence in the light most favorable to the Commonwealth,

the evidence was sufficient to prove Intentional Possession of a Controlled

Substance, Manufacture, Delivery, or Possession with Intent to Manufacture




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or Deliver a Controlled Substance, and Criminal Use of a Communications

Facility. Thus, Appellant’s sufficiency challenge has no merit.5

       In her second issue, Appellant challenges the discretionary aspects of

her sentence. Appellant’s Br. at 9-11.

       Challenges     to   the   discretionary   aspects of sentencing   are   not

automatically reviewable as a matter of right. Commonwealth v. Hunter,

768 A.2d 1136, 1144 (Pa. Super. 2001). Prior to reaching the merits of a

discretionary sentencing issue, we must determine: (1) whether appellant has

filed a timely notice of appeal; (2) whether the issue was properly preserved

at sentencing or in a motion to reconsider and modify sentence; (3) whether

appellant’s brief sufficiently addresses the challenge in a statement included

pursuant to Pa.R.A.P. 2119(f); and (4) whether there is a substantial question

that the sentence appealed from is not appropriate under the Sentencing

Code. Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006).

       In the instant case, Appellant met the first three elements by filing a

timely Notice of Appeal, preserving the issue in a Post-Sentence Motion, and

including a Statement of Reasons Relied Upon for Allowance of Appeal



____________________________________________


5 Appellant also asserts that “the weight of evidence presented by the
Commonwealth at trial did not warrant [her] convictions, even if all evidence
presented by the Commonwealth was believed by the [j]ury.” Appellant’s Br.
at 16, 21. This argument is a sufficiency challenge. See Commonwealth v.
Thompson, 106 A.3d 742, 758 (Pa. Super. 2014) (noting that a weight
challenge questions the evidence that the jury chose to believe). Accordingly,
her purported weight challenge merits no relief.

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pursuant to Pa.R.A.P. 2119(f). Before reaching the merits of Appellant’s

argument, we must review Appellant’s Rule 2119(f) Statement to determine

if he has presented a substantial question for our review.

      Whether    a    substantial     question   has   been   raised   regarding   a

discretionary    sentence        is      determined      on     a      case-by-case

basis. Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). “A

substantial question exists only when the appellant advances a colorable

argument that the sentencing judge's actions were either: (1) inconsistent

with a specific provision of the Sentencing Code; or (2) contrary to the

fundamental norms which underlie the sentencing process.” Id. (citation and

quotation omitted).

      This Court has held that

      the Rule 2119(f) statement must specify where the sentence falls
      in relation to the sentencing guidelines and what particular
      provision of the Code is violated (e.g., the sentence is outside the
      guidelines and the court did not offer any reasons either on the
      record or in writing, or double-counted factors already
      considered). Similarly, the Rule 2119(f) statement must specify
      what fundamental norm the sentence violates and the manner in
      which it violates that norm (e.g., the sentence is unreasonable or
      the result of prejudice because it is 500 percent greater than the
      extreme end of the aggravated range).

Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000).

      In the instant case, without referencing the sentencing guidelines at all,

“what particular provision of the Code is violated,” or “what fundamental norm

the sentence violates and the manner in which it violates that norm,” Appellant

avers in her Rule 2119(f) Statement that her aggregate sentence of 16 to 120


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months’ incarceration was unduly harsh and an abuse of discretion because,

inter alia, she had been compliant with her probation, appeared for all

hearings, and had taken part in drug treatment. Appellant’s Br. at 9. She

essentially disagrees with the court’s consideration of mitigating factors.

       This Court has consistently held that an allegation that a sentencing

court “did not adequately consider certain factors does not raise a substantial

question that the sentence was inappropriate.” Commonwealth v. Cruz-

Centeno, 668 A.2d 536, 545 (Pa. Super. 1995) (citation and internal

quotation marks omitted); see also Commonwealth v. Rhoades, 8 A.3d

912, 918-19 (Pa. Super. 2010) (stating “an allegation that the sentencing

court failed to consider mitigating factors generally does not raise a substantial

question for our review”).6

       Appellant has failed to raise a substantial question. Accordingly, we

decline to review Appellant’s challenge to the discretionary aspects of her

sentence.

       Judgment of Sentence affirmed.




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6 Moreover, where the sentencing court had the benefit of a PSI, we can
assume the sentencing court “was aware of relevant information . . . and
weighed those considerations along with mitigating statutory factors.”
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2019




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