J-S04029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

SHAVAR L. THOMPSON,

                            Appellant               No. 902 MDA 2014


        Appeal from the Judgment of Sentence entered March 20, 2014,
               in the Court of Common Pleas of Dauphin County,
             Criminal Division, at No(s): CP-22-CR-0003090-2013



BEFORE: BOWES, ALLEN, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.:                       FILED FEBRUARY 11, 2015

        Shavar L. Thompson, (“Appellant”), appeals from the judgment of

sentence imposed after a jury convicted him of three counts of delivery of a

controlled substance.1 We affirm.

        Appellant’s convictions arose after the Harrisburg Bureau of Police

received information from a confidential informant that Appellant was selling

crack cocaine in the City of Harrisburg. Trial Court Opinion, 10/21/14, at 2.

Thereafter, Harrisburg Police Detectives Dennis Simmons and Donald

Heffner, along with Patrolman Olivia Conner of the Pennsylvania State

____________________________________________


1
    35 P.S. § 780-113(a)(30).




*Retired Senior Judge assigned to the Superior Court.
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Capitol     Police,   arranged   three   controlled   cocaine   purchases   between

Appellant and the confidential informant and/or an undercover police officer,

on May 10, 2013, May 16, 2013 and June 3, 2013.                     The trial court

summarized the procedural history that followed:

            Appellant, Shavar Thompson, was arrested in connection
      with drug transactions that took place on May 10, May 16, and
      June 3, 2013, in Harrisburg, Pennsylvania.       Appellant was
      charged with three counts of Unlawful Delivery of a Controlled
      Substance, and one count of Possession With Intent to Deliver a
      Controlled Substance. After a jury trial held on March 18-19,
      2014, Appellant was found not guilty of Count 1 (PWID) and
      guilty on Counts 2, 3 and 4 (Delivery). He was sentenced that
      same day to an aggregate term of incarceration of forty-five (45)
      to one hundred eight (108) months along with $1500 in fines,
      payment of the costs of prosecution.

            Appellant filed a timely post-sentence motion on March 25,
      2014, which [the trial court] denied on April 28, 2014.
      Subsequently, on May 28, 2014, Appellant timely filed the
      instant appeal. [Both Appellant and the trial court have complied
      with Pa.R.A.P. 1925].

Trial Court Opinion, 10/21/14, at 1-2.

      Appellant presents two issues for our review:


      I.       WHETHER THE TRIAL COURT ERRED IN DENYING
               APPELLANT’S POST-SENTENCE MOTION WHERE THE
               JURY’S VERDICT OF GUILTY ON ALL COUNTS WAS
               AGAINST THE WEIGHT OF THE EVIDENCE WHERE THE
               COMMONWEALTH FAILED TO PROVE THAT APPELLANT
               COMMITTED THE CRIMES CHARGED?

      II.      WHETHER THE TRIAL COURT ERRED IN DENYING
               APPELLANT’S POST-SENTENCE MOTION AS APPELLANT’S
               SENTENCE IS EXCESSIVE AND UNREASONABLE WHERE IT
               IS INCONSISTENT WITH THE GRAVITY OF THE VIOLATION
               AND APPELLANT’S REHABILITATIVE NEEDS AND WHERE


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              THE   PUNITIVE   MEASURES    INHERENT   IN THIS
              SENTENCING SCHEME COULD HAVE BEEN ACCOMPLISHED
              WITH THE IMPOSITION OF A LESSER SENTENCE?

Appellant’s Brief at 6.

       In his first issue, Appellant challenges the weight of the evidence.2

Our scrutiny of whether a verdict is against the weight of the evidence is

governed by the principles set forth in Commonwealth v. Champney, 832

A.2d 403, 408 (Pa. 2003) (citations omitted):

             The weight of the evidence is exclusively for the finder of
       fact who is free to believe all, part, or none of the evidence and
       to determine the credibility of the witnesses. An appellate court
       cannot substitute its judgment for that of the finder of fact.
       Thus, we may only reverse the lower court's verdict if it is so
       contrary to the evidence as to shock one's sense of justice.


____________________________________________


2
       In its Pa.R.A.P. 1925(a) opinion, the trial court concluded that
Appellant had waived his weight of the evidence claim. See Trial Court
Opinion, 10/21/14, at 10. The trial court observed that although, in his
concise statement, Appellant raised a challenge to the weight of the
evidence, the substance of his claim (that the Commonwealth “failed to
prove he committed the crime charged”) was truly a sufficiency claim. The
trial court reasoned that “when a defendant makes a weight of the evidence
claim ‘he concedes that sufficient evidence exists to sustain the jury’s
verdict.’ Commonwealth v. Rosetti, 863 A.2d 1185, 1191-1192 (Pa.
Super. 2004).” Id. The trial court concluded that “Appellant’s weight of the
evidence claim must fail as he supports his claim by asserting that the
Commonwealth ... failed to present sufficient evidence to sustain the jury’s
verdict” which “did not present a weight of the evidence claim” that the trial
court could consider. Id.

      Upon review, however, we disagree, and conclude that Appellant’s
weight of the evidence claim has been adequately developed to preserve it
for appellate review. Accordingly, we address the merits of Appellant’s
weight of the evidence challenge.



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            Moreover, where the trial court has ruled on the weight
      claim below, an appellate court's role is not to consider the
      underlying question of whether the verdict is against the weight
      of the evidence. Rather, appellate review is limited to whether
      the trial court palpably abused its discretion in ruling on the
      weight claim.


      Appellant argues that the Commonwealth’s evidence was contradictory

and unreliable and could not support a guilty verdict.    Appellant’s Brief at

18-19. Specifically, Appellant asserts that the detectives’ testimony was not

credible because Detective Heffner, who was present during the May 16,

2013 cocaine purchase, was unable to see Appellant and the confidential

informant engage in a hand-to-hand transaction, although he was “a mere

half block” away. Id. at 19. Appellant claims that he did not sell cocaine to

the confidential informant on May 16, 2013, but “met the CI in the alleyway

out of the purview of his girlfriend since he and the CI were sexually

intimate. When the CI asked Appellant to do drugs, Appellant refused and

walked away.” Id. at 18. Additionally, Appellant argues that the testimony

of Detectives Heffner and Simmons conflicted with regard to Appellant’s

location at the time of his arrest, specifically, whether Appellant was inside

or outside the police vehicle.    Appellant’s Brief at 18-19.    Accordingly,

Appellant argues that the trial court erred in denying his post-sentence

motion for a new trial.

      “A new trial is warranted on a challenge to the weight of the evidence

only if the verdict is so contrary to the evidence as to shock one's sense of



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justice. Furthermore, issues of credibility are left to the trier of fact; the jury

is   free   to   accept   all,   part,   or   none    of   the    witness   testimony.”

Commonwealth v. Russell, 665 A.2d 1239, 1246-1247 (Pa. Super. 1995)

(citations omitted). Here, the jury found the detectives’ testimony regarding

the controlled purchases of cocaine from Appellant to be credible, and did

not find any of the slight variations in the testimony to affect credibility.

See N.T., 3/18-19/14, at 39-97. While Appellant asserts that the testimony

of   the    Commonwealth’s       witnesses    was    unreliable    and   contradictory,

credibility determinations are for the jury to resolve, and we will not disturb

such credibility determinations on appeal.           See Commonwealth v. Cruz-

Centeno, 668 A.2d 536, 541 (Pa. Super. 1995) (it is solely for the finder of

fact to determine the credibility of witnesses and to resolve any conflicts or

inconsistencies in the evidence). Although Appellant testified to a different

version of events, and asserts that his testimony was more credible than the

Commonwealth’s, the jury, within its province as fact finder, was free to

disbelieve Appellant’s version of events and credit the testimony of the

Commonwealth’s witnesses.          We reiterate that questions of credibility and

evidentiary weight are within the sole discretion of the jury, which we will

not disturb on appeal.       Upon review, we find no error in the trial court’s

determination that the verdict does not shock one’s sense of justice.

Champney, supra.




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      In his second issue, Appellant argues that the trial court abused its

discretion when it sentenced him to a term of imprisonment of forty-five

(45) to one hundred and eight (108) months. Appellant’s Brief at 20-22. A

challenge to the discretionary aspects of a sentence is not appealable as of

right. Rather, Appellant must petition for allowance of appeal pursuant to 42

Pa.C.S.A. § 9781. Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa.

Super. 2004).

            Before we reach the merits of this [issue], we must engage
      in a four part analysis to determine: (1) whether the appeal is
      timely; (2) whether Appellant preserved his issue; (3) whether
      Appellant's brief includes a concise statement of the reasons
      relied upon for allowance of appeal with respect to the
      discretionary aspects of sentence; and (4) whether the concise
      statement raises a substantial question that the sentence is
      appropriate under the sentencing code. The third and fourth of
      these requirements arise because Appellant's attack on his
      sentence is not an appeal as of right. Rather, he must petition
      this Court, in his concise statement of reasons, to grant
      consideration of his appeal on the grounds that there is a
      substantial question. Finally, if the appeal satisfies each of these
      four requirements, we will then proceed to decide the
      substantive merits of the case.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citations

omitted).

      Appellant has preserved his claim by filing a post-sentence motion and

timely notice of appeal.   Appellant has additionally included in his brief a

concise statement pursuant to Pa.R.A.P. 2119(f).      See Appellant’s Brief at

14-16. Therefore, we proceed to determine whether Appellant has raised a

substantial question for our review.


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     Appellant argues that a sentence of forty-five (45) to one hundred and

eight 108 (108) months of imprisonment was inappropriate in light of

Appellant’s age, community service, and efforts to rehabilitate himself.

Appellant’s Brief at 16, 22. “[A]rguments that the sentencing court failed to

consider the factors proffered in 42 Pa.C.S. § 9721 does present a

substantial question, whereas a statement that the court failed to consider

facts of record, though necessarily encompassing the factors of § 9721, has

been rejected.” Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa.

Super. 2014) quoting Commonwealth v. Dodge, 77 A.3d 1263, 1272 n. 8

(Pa. Super. 2013). Here, Appellant essentially asserts that the court failed

to weigh appropriately the mitigating facts of record. Such a claim that the

court failed to consider facts of record does not constitute a substantial

question. Therefore, we deny Appellant’s sentencing claim.

     For the foregoing reasons, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/11/2015




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