J-S57008-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
JEFFERY T. MORALES,                        :
                                           :
                   Appellant               : No. 2823 EDA 2013

           Appeal from the Judgment of Sentence August 12, 2013,
                Court of Common Pleas, Philadelphia County,
              Criminal Division at No. CP-51-CR-0010305-2012

BEFORE: DONOHUE, MUNDY and STABILE, JJ.

MEMORANDUM BY DONOHUE, J.:                        FILED OCTOBER 10, 2014

       Jeffrey T. Morales (“Morales”) appeals from the judgment of sentence

entered on August 12, 2013 by the Court of Common Pleas of Philadelphia

County, Criminal Division, following his convictions for the manufacture,

delivery, or possession with intent to manufacture or deliver, a controlled

substance,1 possessing a controlled or counterfeit substance,2 and the use

of, or possession with intent to use, drug paraphernalia.3 We affirm.

       The trial court summarized the facts in this case as follows:

             On July 24, 2012, between 2:00 p.m. and 6:00 p.m.,
             Philadelphia Police Officer Thomas Rola met with a
             confidential informant (‘CI’), gave him $70
             prerecorded buy money[,] and directed him to go to


1
    35 P.S. § 780-113(a)(30).
2
    35 P.S. § 780-113(a)(16).
3
    35 P.S. § 780-113(a)(32).
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          the 3000 block of Arbor Street in Philadelphia. Officer
          Rola observed the CI engage [Morales] in a
          conversation just outside of an open garage at 3033
          Arbor Street. [Morales] pointed to the open garage,
          where he and the CI began to walk. While walking to
          the garage, the CI handed [Morales] the $70 of
          prerecorded buy money. The CI entered 3033 Arbor
          Street while [Morales] entered 3035 Arbor Street.
          [Morales] then exited 3035 Arbor Street and entered
          3033 Arbor Street. A very short time later, both the
          CI and [Morales exited] 3033 Arbor Street.
          Thereafter, the CI returned to Officer Rola and
          handed him seven packets of heroin stamped
          ‘Boogeyman’ that he had received from [Morales].

          On August 8, 2012, at approximately 2:30 p.m.[,]
          Officer Rola and Officer Parrotti returned to the 3000
          block of Arbor Street in Philadelphia. Officer Rola set
          up a surveillance at the same location as the
          surveillance on July 24, 2012. At that time, Officer
          Parrotti approached the 3000 block of Arbor Street
          and was met at 3033 Arbor Street by a Hispanic
          male, wearing a white [t]-[s]hirt, in front of 3033
          Arbor Street. A similar series of events occurred[]
          where heroin with the same stamp was sold,
          however[,] the male that the CI interacted with that
          day was not [Morales], as he was in Puerto Rico on
          that date.

          On August 10, 2012, at approximately 9:35 a.m.
          Officer Rola executed search and seizure warrants
          for 3033, 3035[,] and 3036 Arbor Street. At
          approximately 9:40 a.m.[,] Officer Rola secured the
          property at 3035 Arbor Street. Immediately
          thereafter, Officer Rola went to the residence across
          from the garage on 3035 Arbor Street and entered
          the property at 3036 Arbor Street. At that time,
          Officer Rola entered the property, went up the steps
          and observed [Morales] standing in the rear
          bedroom, throwing a brown Timberland boot out of
          the rear window into a yard that was occupied by a
          pit bull. The boot was recovered and inside was
          $6,035. Officer Rola arrested [Morales] and



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            recovered from the rear bedroom three packets of
            heroin stamped ‘Boogeyman’ bundled with a black
            rubber band which matched the buys from July 24,
            2012 and August 8, 2012, $4,984, and one clear
            baggie with red apple logos which contained
            numerous new and unused clear packets.

Trial Court Opinion, 1/16/14, at 2-3 (record citations omitted).

      On May 13, 2013, following trial, the trial court found Morales guilty of

the above-referenced crimes. On July 19, 2013, prior to sentencing, Morales

filed a document titled motion for relief pursuant to [Pa.R.Crim.P.] 720 in

which he sought a new trial based on newly discovered evidence. Motion for

Relief Pursuant to [Pa.R.Crim.P.] 720, 7/19/13, at 2-3. On August 12, 2013,

the trial court denied that motion during the sentencing hearing and then

sentenced Morales to 15 to 30 months of incarceration followed by two years

of probation. On August 21, 2013, Morales filed a motion for reconsideration

of sentence. On September 16, 2013, the trial court denied his motion for

reconsideration of sentence.    On October 4, 2013, Morales filed a timely

notice of appeal. On October 28, 2013, the trial court ordered Morales to file

a concise statement of errors complained of on appeal pursuant to Rule

1925(b) of the Pennsylvania Rules of Appellate Procedure. On November 6,

2013, Morales timely filed his Rule 1925(b) statement.

      On appeal, Morales raises the following three issues for our review:

            [1.] DID THE TRIAL COURT COMMIT AN ABUSE OF
            DISCRETION BY DENYING [MORALES]’S POST-
            SENTENCE MOTION ALLEGING THAT THE VERDICTS
            WERE AGAINST THE WEIGHT OF THE EVIDENCE



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            BECAUSE THE TESTIMONY WAS REPLETE WITH
            INCONSISTENCIES AND CONTRADICTIONS SUCH
            THAT THE VERDICTS [SHOCK] THE CONSCIENCE?

            [2.] DID THE TRIAL COURT COMMIT AN ABUSE OF
            DISCRETION     BY   FAILING  TO    CONSIDER
            [MORALES]’S REHABILITATIVE NEEDS AND FAMILY
            CIRCUMSTANCES AND RESPONSIBILITIES?

            [3.] DID THE TRIAL COURT COMMIT AN ABUSE OF
            DISCRETION BY DENYING [MORALES]’S PRE-
            SENTENCE MOTION SEEKING A NEW TRIAL BASED
            ON AFTER-DISCOVERED EVIDENCE.

Morales’s Brief at 3.

      For his first issue on appeal, Morales argues that the jury’s verdict was

against the weight of the evidence. Morales’s Brief at 11-14. Our standard

of review when presented with a weight of the evidence claim is different

from that applied by the trial court:

            Appellate review of a weight claim is a review of the
            exercise of discretion, not of the underlying question
            of whether the verdict is against the weight of the
            evidence.    Because the trial judge has had the
            opportunity to hear and see the evidence presented,
            an appellate court will give the gravest consideration
            to the findings and reasons advanced by the trial
            judge when reviewing a trial court’s determination
            that the verdict is against the weight of the
            evidence. One of the least assailable reasons for
            granting or denying a new trial is the lower court’s
            conviction that the verdict was or was not against
            the weight of the evidence.

Commonwealth v. Antidormi, 84 A.3d 736, 758 (Pa. Super. 2014).

Therefore, “an appellate court reviews the exercise of the trial court’s

discretion; it does not answer for itself whether the verdict was against the



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weight of the evidence.” Commonwealth v. Houser, 18 A.3d 1128, 1135-

36 (Pa. 2011). Importantly, “a new trial based on a weight of the evidence

claim is only warranted where the jury’s verdict is so contrary to the

evidence that it shocks one’s sense of justice.” Id.

      We conclude that Morales has waived his weight of the evidence claim.

Pennsylvania Rule of Criminal Procedure 607(a) states:

            (A) A claim that the verdict was against the weight
            of the evidence shall be raised 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 before
                  sentencing; or

                  (3) in a post-sentence motion.

Pa.R.Crim.P. 607(a).   Our Court has repeatedly held that the “[f]ailure to

challenge the weight of the evidence presented at trial in an oral or written

motion prior to sentencing or in a post-sentence motion will result in waiver

of the claim.”   Commonwealth v. Bryant, 57 A.3d 191, 196 (Pa. Super.

2012) (citing Commonwealth v. Bond, 985 A.2d 810, 820 (Pa. 2009)).

Furthermore, our Supreme Court has explained,

            Appellant’s failure to challenge the weight of the
            evidence before the trial court deprived that court of
            an opportunity to exercise discretion on the question
            of whether to grant a new trial. Because ‘appellate
            review of a weight claim is a review of the exercise
            of discretion, not of the underlying question of
            whether the verdict is against the weight of the



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           evidence,’ Commonwealth v. Widmer, [] 744 A.2d
           745, 753 ([Pa.] 2000), this Court has nothing to
           review on appeal.

Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009).

     Additionally, “[f]ailure to properly preserve the [weight] claim will

result in waiver, even if the trial court addresses the issue in its opinion.

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

denied, 69 A.3d 601 (Pa. 2013). Our Court explained:

           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, []
           832 A.2d 403, 408 ([Pa.] 2003). Here, the trial court
           never ‘ruled’ on the issue and, therefore, it could not
           grant nor 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.

Commonwealth v. Thompson, 93 A.3d 478, 490-91 (Pa. Super. 2014).

Therefore, because the certified record reflects that Morales failed to raise

his weight of the evidence claim prior to sentencing or in a post-sentence



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motion, we find that he has waived his weight of the evidence claim on

appeal, even though the trial court addressed the merits of his claim.

      For his second issue on appeal, Morales raises a discretionary aspects

of sentence claim.      Morales’s Brief at 15-20.      “A challenge to the

discretionary aspects of a sentence must be considered a petition for

permission to appeal, as the right to pursue such a claim is not absolute.”

Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004), appeal

denied, 860 A.2d 122 (Pa. 2004). “Two requirements must be met before

we will review this challenge on its merits.” Id. “First, an appellant must

set forth in his brief a concise statement of the reasons relied upon for

allowance of appeal with respect to the discretionary aspects of a sentence.”

Id. “Second, the appellant must show that there is a substantial question

that the sentence imposed is not appropriate under the Sentencing Code.”

Id.   A substantial question exists when, “the sentence violates either a

specific provision of the sentencing scheme set forth in the Sentencing Code

or a particular fundamental norm underlying the sentencing process.”

Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005).

      In the present case, Morales’s appellate brief contains the requisite

2119(f) concise statement. See Morales’s Brief at 15-16. Morales argues

that the sentencing court did not take into consideration his rehabilitative

needs and family obligations when sentencing him. Id. at 16-20. A claim

that a sentencing court failed to consider the rehabilitative needs of the



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defendant does not present a substantial question for our review.        See

Commonwealth v. Griffin, 65 A.3d 932, 936-37 (Pa. Super. 2013)

(holding that the appellant’s allegation that the sentencing court failed to

take into account his rehabilitative needs entitled him to no relief), appeal

denied, 76 A.3d 538 (Pa. 2013). Likewise, a claim that a sentencing court

did not consider a defendant’s family obligations does not raise a substantial

question. See Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super.

2010) (“An allegation that the sentencing court failed to consider certain

mitigating factors generally does not necessarily raise a substantial

question.”).   Because Morales has not raised a substantial question, his

discretionary aspects of sentence claim must fail.

      Even if we were to determine that Morales’s claim did raise a

substantial question, we find no merit to the underlying allegation. Morales

contends that the trial court abused its discretion in sentencing him because

it failed to consider his rehabilitative needs and his family obligations in

accordance with section 9721(b) of the Sentencing Code. Morales’s Brief at

16-20.   Here, however, the record reflects that the trial court considered

each of the factors of section 9721(b), including his rehabilitative needs and

family obligations.   See Trial Court Opinion, 1/16/14, at 7.      Therefore,

because the trial court took into consideration each of the factors in section

9721(b), Morales’s argument that the sentencing court did not contemplate

his rehabilitative needs and family obligations fails. Moreover, we note that



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the trial court sentenced Morales in the mitigated range of the sentencing

guidelines, providing further support for the trial court’s representation that

it included both his rehabilitative needs and other mitigating factors in its

sentencing decision.   Accordingly, we conclude that the trial court did not

abuse its discretion in sentencing Morales.

      For his third issue on appeal, Morales claims that the trial court erred

by denying his pre-sentence motion for a new trial based on newly

discovered evidence showing that he had rented a hotel room in Wildwood,

New Jersey from July 22 to July 28, 2012. Morales’s Brief at 20. Morales

argues that his hotel receipt proves that he was not involved in a drug

transaction on July 24, 2012. Id. at 20-23.

      We conclude that Morales has failed to preserve his newly discovered

evidence issue for review because he did not file any post-trial motions.

Rule 704(B) of the Pennsylvania Rules of Criminal Procedure provides:

            (B) Oral Motion for Extraordinary Relief.

            (1) Under extraordinary circumstances, when the
            interests of justice require, the trial judge may,
            before sentencing, hear an oral motion in arrest of
            judgment, for a judgment of acquittal, or for a new
            trial.

            (2) The judge shall decide a motion for extraordinary
            relief before imposing sentence, and shall not delay
            the sentencing proceeding in order to decide it.

            (3) A motion for extraordinary relief shall have no
            effect on the preservation or waiver of issues for
            post-sentence consideration or appeal.



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Pa.R.Crim.P. 704(B). “The plain terms of Rule 704(B) does not permit the

filing of a written motion for extraordinary relief prior to sentencing.”

Commonwealth v. Howe, 842 A.2d 436, 441 (Pa. Super. 2004) (emphasis

in original).

      Moreover, this Court has held that “Rule 704 … specifically declares

that any motion for extraordinary relief must be preserved via a post-trial

motion.”    Commonwealth v. Askew, 907 A.2d 624, 627 (Pa. Super.

2006). In applying Rule 704(B), our Court has explained:

                The comment to the rule clarifies that a motion for
                extraordinary relief is neither necessary nor sufficient
                to preserve an issue for appeal. This Court has
                consistently held that we will not allow such motions
                as a ‘substitute vehicle’ for raising a matter that
                should be raised in a post-sentence motion.

Id. (internal citations, quotations, and footnotes omitted); see also

Commonwealth v. Grohowski, 980 A.2d 113, 115-16 (Pa. Super. 2009);

Commonwealth v. Woods, 909 A.2d 372, 378-79 (Pa. Super. 2006).

       Here, prior to sentencing, Morales filed a document that he titled

motion for relief pursuant to [Pa.R.Crim.P.] 720 in which a sought a new trial

based on newly discovered evidence.               The caption of the motion does

reference Rule 720, however, Rule 720 governs post-sentence motions.

See Pa.R.Crim.P. 720. Here, Morales filed this motion prior to sentencing

and the trial court heard argument on the motion before denying it during

the sentencing hearing, prior to sentencing Morales. N.T., 8/12/13, at 3-8.



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Notably, the docket refers to this motion as a motion for extraordinary relief.

Accordingly, we find that Morales filed a motion for extraordinary relief

pursuant   to   Rule   704(B).     See    Pa.R.Crim.P.    704(B);   see   also

Commonwealth v. Wesley, 688 A.2d 201, 204 (Pa. Super. 1997)

(recognizing that specific terms of a petition control over the use of

erroneous terminology in the caption).

      Rule 704 makes clear that Morales’s pre-sentence motion alone was

neither necessary nor sufficient to preserve his newly discovered evidence

issue for appeal to this Court. See Askew, 907 A.2d at 627; Howe, 842

A.2d at 441; Pa.R.Crim.P. 704(B)(3), comment.          Had Morales raised his

newly discovered evidence issue in a timely post-sentence motion, he would

have preserved the issue for appeal.          See Askew, 907 A.2d at 627.

Morales did not file any post-sentence motions in this case besides his

motion for reconsideration of sentence, in which he did not raise any issue

relating to newly discovered evidence.       See Motion for Reconsideration of

Sentence, 8/21/13, at 1-2.        Because Morales only raised his newly

discovered evidence issue in a motion for extraordinary relief and not in a

post-sentence motion, we are compelled to find that Morales has not

preserved this issue for appeal. See Askew, 907 A.2d at 627.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/10/2014




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