J-S61034-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
                v.                          :
                                            :
                                            :
 TYREE CALVIN HARGROVES,                    :
                                            :
                      Appellant             :   No. 685 EDA 2018

           Appeal from the Judgment of Sentence November 20, 2017
               In the Court of Common Pleas of Monroe County
             Criminal Division at No(s): CP-45-CR-0000315-2017


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

MEMORANDUM BY PANELLA, J.                         FILED FEBRUARY 19, 2019

         Appellant, Tyree Calvin Hargroves, appeals from the judgement of

sentence entered in the Monroe County Court of Common Pleas. He argues

the court erred in denying his motion to suppress evidence obtained from a

cell phone; in finding the evidence sufficient to convict him of attempted

possession with intent to deliver (“PWID”) heroin, attempted PWID cocaine,

criminal conspiracy, attempted PWID, and criminal use of a communication

facility; in finding the weight of the evidence supported his verdicts; and in

imposing consecutive sentences. We affirm.

         The record supports the following factual summary provided by the trial

court.

         In December 2016, a bench warrant was issued for the Defendant,
         Tyree Hargroves, for failure to appear at a proceeding before the
         Monroe County Court of Common Pleas. Officers with the Pocono
         Mountain Regional Police Department ("PMRPD"), who were
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     familiar with the Defendant, went to the area near 9157
     Brandywine Drive in Coolbaugh Township, which was known to be
     the residence for the Defendant's girlfriend. While conducting
     surveillance, Detective/Corporal Lucas Bray observed the
     Defendant on the porch of the residence shoveling snow and in
     the driveway clearing snow from a running vehicle.
     Detective/Corporal Bray continued surveillance while he awaited
     assistance from another officer. Before the arrival of additional
     officers, the Defendant left the residence in the vehicle.
     Detective/Corporal Bray followed the Defendant and observed him
     stop the vehicle in front of a residence at 2415 Winding Way in
     Coolbaugh Township. At that location, Detective/Corporal Bray
     observed a male, later identified as Joseph Nemeth, walk to the
     driver's side of the Defendant's vehicle, at which time a hand to
     hand transaction occurred between Nemeth and the Defendant
     and Nemeth then returned to his residence. As the Defendant
     drove away, additional officers finally arrived and a traffic stop
     was initiated on the Defendant's vehicle a short distance from the
     Nemeth residence to detain the Defendant on a bench warrant.

     At the time of the traffic stop, the Defendant was on a video phone
     call with his girlfriend. The cell phone that the Defendant was
     using for that call was seized and later searched pursuant to a
     search warrant. In addition to the cell phone, the Defendant was
     in possession of three (3) $100 bills folded together outside his
     wallet and an additional $117. Officers also observed rubber bands
     inside the vehicle consistent with those used to bundle heroin.
     Utilizing his K-9 partner, Niko, PMRPD Corporal Matt Nero
     conducted a K-9 sniff of the Defendant's vehicle. K-9 Niko alerted
     to the driver's side of the vehicle for the scent of drugs. No drugs
     were ultimately found in the vehicle; rather, only the rubber bands
     were found in and around the driver’s side of the vehicle.

     When Detective/Corporal Bray confronted the Defendant about
     the hand to hand transaction he observed on Winding Way, the
     Defendant admitted to Detective/Corporal Bray that the $300
     came from Nemeth, but alleged it was a loan and denied it was
     for the sale of drugs. When Detective/Corporal Bray and Corporal
     Nero questioned Nemeth regarding the hand to hand transaction,
     Nemeth and his girlfriend admitted the Defendant was their drug
     dealer and they arranged for him to take the $300 to purchase
     heroin and cocaine. Detective/Corporal Bray reviewed Nemeth's
     cellular phone and observed communications consistent with
     Nemeth's statements. The subject communications happened
     within a short time before the hand to hand exchange was

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      observed. Following the execution of a search warrant on the
      Defendant's phone, Detective/Corporal Bray located the same
      communications Nemeth admitted to and contained on Nemeth's
      phone.

      This evidence was submitted at trial through the testimony of
      Nemeth, Monroe County District Attorney's Office Detective Brian
      Webbe, Corporal Nero and Detective/Corporal Bray, as well as
      through Nemeth and the Defendant's cell phones. Following
      deliberations, the jury found the Defendant guilty of two (2)
      counts of Criminal Attempt-Possession With Intent to Deliver
      ("PWID"), 35 P.S. § 780-113(a)(30), (being for one (1) count
      cocaine and one (1) count heroin), Criminal Conspiracy to Commit
      PWID, 18 Pa. C.S. § 903, and Criminal Use of Communication
      Facility, 18 Pa. C.S. § 7512. On November 20, 2017, this
      Honorable Court sentenced the Defendant [to] a total aggregate
      sentence of incarceration in a state correctional institution of not
      less than forty-eight (48) months nor more than ninety-six (96)
      months.

Trial Court Opinion, dated 1/30/18, at 2-4.

      Hargroves filed timely post-sentence motions, which the court denied.

He then filed this timely appeal. We will address Hargroves’ sufficiency

challenges to his conviction, issues number four and five, first.

      Issues four and five are both challenges to the sufficiency of the

evidence at trial to support the jury’s verdict. Our standard of review for a

challenge to the sufficiency of the evidence is to determine whether, when

viewed in a light most favorable to the verdict winner, the evidence at trial

and all reasonable inferences therefrom are sufficient for the trier of fact to

find that each element of the crimes charged is established beyond a

reasonable doubt. See Commonwealth v. Dale, 836 A.2d 150, 152 (Pa.

Super. 2003). “The Commonwealth may sustain its burden of proving every

element of the crime beyond a reasonable doubt by means of wholly

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circumstantial evidence.” Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa.

Super. 2007) (citation omitted).

      “[T]he facts and circumstances established by the Commonwealth need

not preclude every possibility of innocence.” Id. (citation omitted). Any doubt

raised as to the accused’s guilt is to be resolved by the fact-finder. See id.

“As an appellate court, we do not assess credibility nor do we assign weight

to any of the testimony of record.” Commonwealth v. Kinney, 863 A.2d

581, 584 (Pa. Super. 2004) (citation omitted). Thus, we will not disturb the

verdict “unless the evidence is so weak and inconclusive that as a matter of

law no probability of fact may be drawn from the combined circumstances.”

Bruce, 916 A.2d at 661 (citation omitted).

      In issue four, Hargroves challenges the sufficiency of the evidence

supporting his conviction for attempted PWID – heroin, attempted PWID –

cocaine, and criminal conspiracy for attempted PWID. He specifically contends

there was not a purchase of drugs, there was not a significant step taken to

purchase, and there was no sale of drugs. See Appellant’s Brief, at 28.

Furthermore, Hargroves asserts that even if he was going to purchase drugs,

it would only have constituted joint ownership of drugs rather than a sale of

drugs. See id.

      Hargroves’s arguments are beside the point. Nemeth testified that he

made an agreement with Hargroves whereby Nemeth would pay Hargroves

and Hargroves would purchase drugs for Nemeth and Nemeth’s girlfriend. See


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N.T., 10/5/17, at 42-44. In addition, Detective Bray testified that he witnessed

a hand-to-hand transaction, or exchange of money for drugs, between

Nemeth and Hargroves, and Hargroves drive away, seemingly in order to

procure the drugs for Nemeth and Nemeth’s girlfriend. See id. at 118-119.

The jury was entitled to credit the testimony of both witnesses, and infer that

Hargroves arranged for the attempted possession of both heroin and cocaine

with the intent to sell it to Nemeth. Thus, Hargroves’ issue number four merits

no relief on appeal.

       In his fifth numbered issue, Hargroves challenges the sufficiency of the

evidence supporting his conviction for criminal use of a communication facility.

The offense of criminal use of a communication facility is defined 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.
       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.A. § 7512 (footnote omitted). Thus, to support a conviction under

section 7512, the Commonwealth must establish 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 … Facilitation has been defined as “any use of a
       communication facility that makes easier the commission of the
       underlying felony.”




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Commonwealth v. Moss, 852 A.2d 374, 382 (Pa. Super. 2004) (internal

citations omitted).

      Hargroves argues the Commonwealth failed to establish that an

underlying felony occurred, and thus, the Commonwealth could not prove the

third Moss element. See Appellant’s Brief, at 30. We have already concluded

that the Commonwealth presented sufficient evidence to convict Hargroves of

attempted PWID of heroin and cocaine. The court in Moss clearly states “[t]he

express language of § 7512(a) prohibits use of a communications facility to

facilitate the attempted commission of an underlying felony.” Moss, at 382.

      The record reflects that the use of cell phones facilitated Hargroves’

attempt at possessing illegal drugs with the intent to deliver them to Nemeth.

See N.T., 10/5/17, at 41-42, 132. The Commonwealth provided text records

establishing Hargroves and Nemeth had communicated. See id., at 41-42,

132, 171. This evidence, along with the testimony of Nemeth and Detective

Bray, was certainly sufficient to support the convictions. If, as the jury was

entitled to do, the jury believed the witness testimony, that was enough to

establish that Nemeth communicated to Hargroves his desire to purchase

heroin and cocaine by text message, and that Hargroves replied by informing

Nemeth where to meet to consummate the payment for the transaction.

Hargroves’ fifth issue on appeal merits no relief.

      Issues three and six are both challenges to the weight of the evidence

at trial to support the jury’s verdict.


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      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. 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.

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (internal

citations omitted).

      When the challenge to the weight of the evidence is predicated on
      the credibility of trial testimony, our review of the trial court’s
      decision is extremely limited. Generally, unless the evidence is so
      unreliable and/or contradictory as to make any verdict based
      thereon pure conjecture, these types of claims are not cognizable
      on appellate review.

Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (internal

quotes and citations omitted).

      In his third numbered issue, Hargroves contends that the verdict in this

case “shocks the conscience” since he was convicted of Attempted PWID when

he did not possess any drugs. See Appellant’s Brief, at 23. Hargroves’

argument is unfounded as actual possession is not required for a charge of

attempt. Hargroves’ guilt hinged on the jury’s determination of witness

credibility, including Nemeth and Detective Bray, and its interpretation of

Hargroves’ text messages. The trial court did not find the witness testimony

so unreliable as to shock its conscience. We find no abuse of discretion in the

court’s assessment of the weight of the evidence at trial. We cannot agree

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with Hargroves that the verdict “completely shocks the conscience.” Thus, we

conclude that Hargroves’ third issue merits no relief.

          In his sixth numbered issue, Hargroves contends that the trial court

abused its discretion when the court did not grant his motion to set aside the

verdict on Count 4, criminal use of a telecommunications facility, asserting

that the verdict was against the weight of the evidence. As we previously

addressed, the evidence at trial was clearly sufficient to show that Hargroves

used his cell phone to send text messages to facilitate the attempted sale of

drugs, thereby using the phone to commit a felony. It is clear that the trial

court did not find the evidence so unreliable as to shock its conscience. Thus,

we find no abuse of discretion in the trial court’s denial of Hargroves’ challenge

to the weight of the evidence on Count 4. Hargroves’ sixth issue merits no

relief.

          Although issues one and two are labeled as distinct abuse of discretion

challenges, we find the arguments made are simply challenges to the

sufficiency and weight of the evidence presented at trial. As we have already

addressed these issues above, we find it unnecessary to respond to these

issues separately and similarly find them to be without merit.

          In his seventh numbered issue, Hargroves asserts that the trial court

erred in denying his pretrial motion to suppress. Specifically, Hargroves

argues the Commonwealth did not show that he sent the relevant messages.




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He contends the messages were not authenticated, and are thus inadmissible

and must be suppressed.

      Our standard of review in addressing a challenge to a trial court’s
      denial of a suppression motion is whether the factual findings are
      supported by the record and whether the legal conclusions drawn
      from those facts are correct. When reviewing the ruling of the
      suppression court, we must consider only the evidence of the
      prosecution and so much of the evidence of the defense as
      remains uncontradicted when read in the context of the record as
      a whole. Where the record supports the findings of the
      suppression court, we are bound by those facts and may reverse
      only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations

omitted).

      “It is within the suppression court’s sole province as factfinder to pass

on the credibility of witnesses and the weight to be given to their testimony.

The suppression court is free to believe all, some or none of the evidence

presented at the suppression hearing.” Commonwealth v. Elmobdy, 823

A.2d 180, 183 (Pa. Super. 2003) (citation omitted).

      Hargroves challenges the authentication of the text messages. Under

the rules of evidence, text messages may be authenticated at trial by: “(1)

testimony from either the author or the sender; (2) circumstantial evidence,

including distinctive characteristics like information specifying the author-

sender or reference to or correspondence with relevant events preceding or

following the message; or (3) any other facts or aspects of the message that

signify it to be what its proponent claims.” Commonwealth v. Murray, 174

A.3d 1147, 1156-57 (Pa. Super. 2017) (citations and internal quotation marks



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omitted); see also Pa.R.E. 901. The court in Murray found that the

Commonwealth had sufficiently authenticated text messages recovered from

defendant’s cell phone because the cell phone was in defendant’s possession

when he was taken into custody. Id. Additionally, the content of the

messages, indicating the sender’s expectation that he might be getting locked

up that day and alluding to an item taken from the “bully,” was consistent

with the defendant’s description to his parole agent of the incident in which

he acquired the gun in question. Id.

      Here, Hargroves’s cell phone was taken from him at the time of his

arrest. See N.T., Suppression Hearing, 5/15/17, at 10. Hargroves was

currently using the cell phone at the time of his arrest to call his girlfriend.

See id., at 9-10. Further, Nemeth’s cell phone and corresponding text

messages was seized and provided both sides of the conversation between

Nemeth and Hargroves. See id., at 12-13. Both sides of the conversation

corroborated the chronology of events witnessed by Detective Bray,

specifically Hargroves arriving at Nemeth’s home for the cash transfer, and

Nemeth coming outside to deliver the cash to Hargroves. See id., at 14. The

record supports the trial court’s reasoning to authenticate the text messages

under Murray. Thus, the trial court did not abuse its discretion in rejecting

the motion to suppress. Hargroves’ seventh issue on appeal merits no relief.




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       Finally, Hargroves contends the trial court abused its discretion in

imposing consecutive sentences1. Hargroves argues that the charges were the

result of the same action, and thus should not carry consecutive sentences.

       “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) (citation omitted).


       An appellant challenging the discretionary aspects of his sentence
       must invoke this Court’s jurisdiction by satisfying a four-part test:

       [W]e conduct a four-part analysis to determine: (1) whether
       appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
       and 903; (2) whether the issue was properly preserved at
       sentencing or in a motion to reconsider and modify sentence, see
       Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal
       defect, 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, 42. Pa.C.S.A. § 9781(b).
____________________________________________


1 Hargroves’s argument on this issue is not clear. His statement of the issue
claims the court abused its discretion in imposing consecutive sentences.
However, he opens his argument with a claim that the consecutive sentences
should have merged. Merger is claim that implicates the legality of the
sentence, not the discretionary aspects of the sentence. See Commonwealth
v. Baldwin, 985 A.2d 830, 833 (Pa. 2009). Even if we were to treat
Hargroves’s argument as an argument for merger, he is due no relief. “A
merger is prohibited unless two distinct facts are present: 1) the crimes arise
from a single criminal act; and 2) all of the statutory elements of one of the
offenses are included in the statutory elements of the other.” Id. Count 1 is
specifically for PWID of heroin, while Count 2 is specifically for PWID of
cocaine. See Criminal Information Charges, filed 3/22/17. Thus, we find that
Counts 1 and 2 do not merge for sentencing purposes as they are distinct
criminal acts. And Count 4 would not merge as it required the use of a
telecommunications facility, an element which is not required under the PWID
offenses.

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

omitted; brackets in original).

      “If a defendant fails to include an issue in his Rule 2119(f) statement,

and the Commonwealth objects, then the issue is waived and this Court may

not review the claim.” Commonwealth v. Karns, 50 A.3d 158, 166 (Pa.

Super. 2012) (citation omitted). Hargroves failed to include the required

Pa.R.A.P. 2119(f) statement with his brief. See Appellant’s Brief, at 20. And

the Commonwealth has objected to this failure. See Appellee’s Brief, at 20.

Thus, we are constrained to find this issue waived.

      As we conclude that none of Hargroves’ issues on appeal merit relief,

we affirm the judgement of sentence.

      Judgement of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/19




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