J. S63044/17



NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                   v.                   :
                                        :
ALAN JOSEPH WARD,                       :         No. 739 WDA 2017
                                        :
                        Appellant       :


            Appeal from the Judgment of Sentence, April 25, 2017,
               in the Court of Common Pleas of Mercer County
              Criminal Division at No. CP-43-CR-0001906-2015


BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED DECEMBER 12, 2017

      Alan Joseph Ward appeals the judgment of sentence in which the

Court of Common Pleas of Mercer County sentenced him to serve a term of

27 to 60 months’ imprisonment for possession with intent to deliver (heroin)

(“PWID”).    The trial court also sentenced appellant to a term of 27 to

54 months for criminal conspiracy to commit PWID to run concurrently with

the PWID sentence. After careful review, we affirm.

      The relevant procedural history, as recounted by the trial court, is as

follows:

                  [Appellant] was arrested on December 12,
            2015, and charged with [PWID], Possession of Drug
            Paraphernalia and Criminal Conspiracy.         These
            charges arose out of the discovery of 22.02 grams of
            heroin during a search of 928 Fruit Avenue in the
            City of Farrell that same day.
J. S63044/17


          ....

                On September 12, 2016, the Commonwealth
          filed a Notice pursuant to Pennsylvania Rule of
          Evidence 404(b)(3) of its intent to introduce . . .
          three prior uncharged unlawful deliveries to a
          confidential informant.

                On September 26, 2016, [appellant] filed a
          motion seeking disclosure of the confidential
          informant’s identity.

                Both motions were heard before Judge
          Robert G.   Yeatts  on   September     30,   2016.
          Judge Yeatts entered an order granting the
          Commonwealth leave to introduce the three
          uncharged undercover buys at trial and denying the
          motion to disclose the identity of the confidential
          informant.

                A jury trial commenced on February 21, 2017.
          On February 22, 2017, the jury returned GUILTY
          verdicts on the charges of [PWID] and Criminal
          Conspiracy of [PWID] and NOT GUILTY of Possession
          of a Controlled Substance and Criminal Conspiracy to
          Possession of a Controlled Substance.

                On April 25, 2017, [appellant] was sentenced
          to concurrent terms of imprisonment of not less than
          27 months nor more than 60 months. This sentence
          was in the standard range of the Sentencing
          Guidelines.

               On May 3, 2017, [appellant] filed a Motion for
          Judgment of Acquittal.    The motion was denied
          without a hearing that same day.

                On May 4, 2017, [appellant] filed a Motion to
          Modify Sentence alleging that the sentence imposed
          was manifestly excessive in length because it was
          not specifically tailored to the nature of the offense,
          the ends of justice and society and the rehabilitative
          needs of [appellant]. That motion was denied that
          same day without a hearing.


                                   -2-
J. S63044/17



Trial court opinion, 6/14/17 at 1-3 (footnote omitted).

      Appellant filed a notice of appeal to this court on May 19, 2017. On

May 19 2017, the trial court directed appellant to file a statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).         Appellant timely

filed his statement of errors on appeal.        The trial court then filed its

Rule 1925(a) opinion.

      Appellant raises the following issues for this court’s review:

            [1.]   Challenge to 404(b)(3) Evidence – Whether
                   the Pre-Trial Court erred when it allowed
                   evidence of three prior controlled buys as prior
                   bad acts against [appellant] where appellant
                   was only involved in one of the three and
                   whether such evidence’s prejudicial effect
                   outweighed it probative value.

            [2.]   Challenge to Denial of Confidential Informant
                   Identity – Whether the Pre-Trial Court erred
                   when it granted the admission of prior bad act
                   evidence in the form of three controlled buys
                   and also denied [appellant’s] request to reveal
                   the identity of the confidential informant as the
                   confidential informant’s testimony was the only
                   direct evidence of the prior controlled buys and
                   access to such witness was [appellant’s] only
                   means to properly defend against said
                   evidence.

            [3.]   Challenge to the Sufficiency of Evidence –
                   Whether the Trial Court erred when it denied
                   [appellant’s] Motion for Judgment of Acquittal
                   when the Commonwealth clearly failed to
                   produce sufficient evidence to prove the
                   element of possession in regard to the charge
                   of [PWID] and the conspiracy thereof.




                                      -3-
J. S63044/17


            [4.]   Challenge to the Discretionary Aspect of
                   Sentence – Whether the Trial Court erred when
                   it issued a clearly unreasonable sentence to
                   [appellant] for [PWID] resulting in a 27 month
                   to 60 month state penitentiary sentence and
                   Conspiracy to Possess a Controlled Substance
                   with the Intent to Deliver resulting in a 27 to
                   54 month concurrent state penitentiary
                   sentence and weather [sic] it violated the
                   fundamental norm that a sentence of
                   confinement should address a defendant’s
                   rehabilitative needs.

Appellant’s brief at 13-14.

      Initially, appellant contends that the trial court erred when it allowed

evidence of three prior controlled buys as prior bad acts against appellant

where appellant was only involved in one of the three buys and such

evidence was more prejudicial than probative.

      On September 12, 2016, prior to trial, the Commonwealth notified

appellant pursuant to Rule 404(b)(3) of the Pennsylvania Rules of Evidence

that the Commonwealth intended to introduce at trial evidence of appellant’s

participation in prior crimes and prior bad acts for purposes of motive,

opportunity, intent, preparation, plan, knowledge, identity, and absence of

mistake or lack of accident.

      The Commonwealth alleged that on December 10, 12, and 13, 2015,

the Mercer County Drug Task Force made a series of controlled buys from

appellant and his cousin, Gregory George Weidner (“Weidner”).             The

Commonwealth further alleged that the uncharged buys demonstrated the

conspiracy of appellant and Weidner to possess large amounts of heroin with


                                     -4-
J. S63044/17


intent to deliver and are prior bad acts that help explain why the search

warrant was issued and why appellant and Weidner were tied to the search

location.   (“Commonwealth’s Notice Pursuant to PA.R. [sic] 404(b)(3)” at

7-8, ¶¶ 54-55.)     In the December 10, 2015 buy, a confidential informant

(“CI”) telephoned Weidner to set up a purchase.       Appellant arrived at the

meeting site driving Weidner’s mother’s BMW X5. Appellant exited the BMW

and walked to the CI’s vehicle and entered it. Two minutes later, appellant

left the vehicle.   He drove back to the house on Federal Street.      The CI

produced what appeared to be heroin. (Id. at 9, ¶¶ 56-72.) The other two

buys were set up with Weidner near 928 Fruit Avenue.          The residence at

Fruit Avenue, where the heroin was found, was owned by Valerie Balbirsingh

in care of her mother, Verna McKeithan, who had an oral agreement to sell

the property to Heidi Harris, aka Heidi Williams, who was Weidner’s mother

and appellant’s aunt. (Id. at 12-13, ¶¶ 107-109.)

      In an order dated September 30, 2016, the trial court permitted

evidence of the controlled buys and reasoned:

                    After review, the Court has determined that
             the Commonwealth will be permitted to enter the
             evidence of the controlled buys under the
             res gestae exception to the prohibition, on prior bad
             acts. Res gestae evidence describing other crimes
             or bad acts is admissible to tell the complete story
             only if the probative value of the evidence outweighs
             its potential for unfair prejudice. The controlled buys
             allow the prosecution to tell the complete story of
             the case, as they are part of the same chain as the
             charged crime, and form an integral part of the
             police investigation. The controlled buys were used


                                      -5-
J. S63044/17


            as the basis for the search warrant that led to the
            seizure of 22.04 grams of heroin from the residence
            at 928 Fruit [Avenue], Farrell.         These three
            uncharged instances of selling narcotics to
            undercover agents are necessary to establish the
            background of the search warrant, and to show the
            course of investigative conduct leading up to
            [appellant]’s   arrest.      Not     allowing   the
            Commonwealth to introduce such evidence would
            lead [sic] a large gap in the history of the
            investigation, and is not unfairly prejudicial to
            [appellant].

Trial court order, 9/30/16 at 2 (citation omitted).

      Appellant argues that his only connection to the buys involving

Weidner is that he is Weidner’s cousin and suggestions that appellant is

related to a person who is involved in criminal activity would have the effect

of prejudicing appellant in front of a jury.

      “On appeals challenging an evidentiary ruling of the trial court, our

standard of review is limited.    A trial court’s decision will not be reversed

absent a clear abuse of discretion.” Commonwealth v. Aikens, 990 A.2d

1181, 1184 (Pa.Super. 2010) (citations omitted). “Abuse of discretion is not

merely an error of judgment, but rather where the judgment is manifestly

unreasonable or where the law is not applied or where the record shows that

the action is a result of partiality, prejudice, bias or ill will.”     Id. at

1184-1185 (citations omitted).

                  Generally, evidence of prior bad acts or
            unrelated criminal activity is inadmissible to show
            that a defendant acted in conformity with those past
            acts    or    to    show      criminal    propensity.
            Pa.R.E. 404(b)(1). However, evidence of prior bad


                                      -6-
J. S63044/17


            acts may be admissible when offered to prove some
            other relevant fact, such as motive, opportunity,
            intent, preparation, plan, knowledge, identity, and
            absence of mistake or accident. Pa.R.E. 404(b)(2).[1]
            In determining whether evidence of other prior bad
            acts is admissible, the trial court is obliged to
            balance the probative value of such evidence against
            its prejudicial impact.

Id. at 1185 (citations to case law omitted).

1
            Rule 404. Character Evidence; Crimes or Other
            Acts

            ....

            (b)    Crimes, Wrongs or Other Acts.

                   (1)   Prohibited Uses. Evidence of a
                         crime, wrong, or other act is not
                         admissible to prove a person’s
                         character in order to show that on
                         a particular occasion the person
                         acted in accordance with the
                         character.

                   (2)   Permitted Uses. This evidence
                         may be admissible for another
                         purpose, such as proving motive,
                         opportunity, intent, preparation,
                         plan, knowledge, identity, absence
                         of mistake, or lack of accident. In
                         a criminal case this evidence is
                         admissible only if the probative
                         value of the evidence outweighs its
                         potential for unfair prejudice.

                   (3)   Exceptions    for  a    Witness.
                         Evidence of a witness's character
                         may be admitted under Rules 607,
                         608, and 609.

Pa.R.E. 404(b)(1)-(3).      Rules 607-609 address the impeachment of
witnesses.


                                     -7-
J. S63044/17



      The evidence was admissible as part of the natural development of the

facts of the case.       See Commonwealth v. Burton, 770 A.2d 771, 778

(Pa.Super. 2001), appeal denied, 868 A.2d 1197 (Pa. 2005), overruled

on other grounds by Commonwealth v. Mouzon, 812 A.2d 617 (Pa.

2002) (evidence of other crimes, wrongs, or bad acts is admissible where

they were part of a chain or sequence of events which formed the history of

the case and were part of its natural development, also known as the

“complete story” rationale).     This court finds that the trial court did not

abuse its discretion. As the trial court stated, allowing the admission of this

evidence provides the jury with the necessary background as to why the

search at the      Fruit   Avenue   address   was conducted.     Further, the

Commonwealth alleged that there were much closer connections between

appellant and his cousin with respect to drug transactions than just their

familial relationship.

      Appellant also challenges the admission of evidence concerning the

one controlled buy in which the Commonwealth alleged that he did play a

part. Once again and for the same reasons, the trial court did not abuse its

discretion when it permitted the Commonwealth to introduce this evidence.

      Appellant next contends that the trial court erred when it denied his

request to reveal the identity of the CI as the CI’s testimony was the only

direct evidence of the prior controlled buys and access to the witness was his

only means to properly defend against such evidence. Appellant argues that


                                      -8-
J. S63044/17


because the CI was the only eyewitness to the buys and that testimony from

the police officers would be circumstantial, fairness required that he be given

the identity of the informant prior to trial.

      When reviewing the denial of a motion to disclose the identity of a CI,

our standard of review is “to determine whether the trial court abused its

discretion in denying appellant’s request for discovery.” Commonwealth v.

Belenky, 777 A.2d 483, 487 (Pa.Super. 2001), citing Commonwealth v.

Roebuck, 681 A.2d 1279, 1282 (Pa. 1996).

      The ability to compel disclosure of the identity of a confidential

informant flows from the right to discovery contained in the Rules of

Criminal Procedure.       Pa.R.Crim.P. 573 (B)(2)(a)(i), 42 Pa.C.S.A.               A

defendant has a qualified right to discovery of the names of eyewitnesses.

However,    when    the   eyewitness    is      a   confidential   informant,   police

departments have a well-placed reluctance to disclose the identity of such

eyewitnesses and, in fact, a recognized privilege to refuse disclosure of the

identity of informants.    Commonwealth v. Bing, 713 A.2d 56, 58 (Pa.

1998).   The privilege is not absolute, however, and must give way under

appropriate circumstances.

      When moving for disclosure, the defendant must first show “that the

information sought is material and the request is reasonable.”              Interest

of D.B., 820 A.2d 820, 822 (Pa.Super. 2003). If the defendant satisfies this

burden, then the trial court must apply a balancing test, with “the balance



                                       -9-
J. S63044/17


initially weigh[ing] in favor of maintaining confidentiality of the informant’s

identity   in   order   to   preserve   the   public’s   interest   in   effective   law

enforcement.”       Commonwealth v. McCulligan, 905 A.2d 983, 989

(Pa.Super. 2006).

      “The defendant need not predict exactly what the informant will say,

but he must demonstrate a reasonable possibility the informant could give

evidence that would exonerate him.               More than a mere assertion that

disclosure of the informant’s identity might be helpful is necessary.”

Belenky, 777 A.2d at 488 (citation omitted). “[T]he defendant must lay an

evidentiary basis or foundation that the confidential informant possesses

relevant information that will materially aid the defendant in presenting his

or her defense and that the information is not obtainable from another

source.” Commonwealth v. Hritz, 663 A.2d 775, 780 (Pa.Super. 1995).

See Commonwealth v. Eicher, 605 A.2d 337, 348 (Pa.Super. 1992),

appeal denied, 617 A.2d 1272 (Pa. 1992) (appellant seeking disclosure of

informant must have “concrete evidence” corroborating defense theory

“other than his own self-serving allegations”; absent “more specific

evidence,” the trial court is not required to compel disclosure and allow the

defense to conduct a fishing expedition). Only if the defendant makes this

threshold showing must the trial court weigh the competing interests to

determine       whether      the   informant’s    identity   should      be   revealed.




                                         - 10 -
J. S63044/17


Commonwealth v. Marsh, 997 A.2d 318, 322 (Pa. 2010) (plurality); Bing,

713 A.2d at 58; Belenky, 777 A.2d at 488.

     In the same September 30, 2016 order where the trial court permitted

the admission of evidence of the controlled buys, the trial court denied

appellant’s motion to disclose the identity of the CI.           The trial court

reasoned:

                   Although the Commonwealth argues that the
            identity of the [CI] is not material to the present
            case, the Court must disagree. The Commonwealth
            believes that because the buys themselves are
            uncharged, there is no material evidence to be
            brought from these incidents.           However, it is
            apparent from the record that the informant was an
            integral part of the conspiracy case against the co-
            defendants, making his identity material to the
            present matter. Having reached this determination,
            the Court balanced the parties[’] interest[s] and
            concluded that the Commonwealth is not required to
            disclose the witness[.] The Commonwealth asserts
            that it can make its case based entirely on the
            testimony of police officers, and that it does not need
            any direct statement from the informant. Moreover,
            this testimony is not that of a lone officer, but the
            combination of several officers’ testimony concerning
            the situation surrounding the controlled buys and
            other corroborating evidence such as unmarked bills.
            Not only is the testimony of the informant not
            necessary to the prosecution of the case, but
            revealing the identity of the informant raises a risk of
            harm to the informant and has the potential to
            disincentivize [sic] other citizens to participate in this
            form of police reconnaissance. Both defendants in
            this case possess substantial criminal records,
            including    aggravated      assaults   and     weapons
            convictions.     The Commonwealth is reasonably
            concerned about preserving its informant’s safety,
            and ensuring that other informants feel safe working
            with law enforcement.


                                     - 11 -
J. S63044/17



Trial court order, 9/30/16 at 3-4.

      Here, the trial court determined that appellant met the threshold that

the CI’s testimony would be material and the request was reasonable. The

trial court then determined that the testimony of several police officers as

well as other evidence could prove the Commonwealth’s case such that the

testimony of the CI would not necessarily prove helpful to appellant.

Further, the trial court reasoned because both appellant and Weidner had a

history of aggravated assault and weapons convictions that the CI could be

in some danger if his or her identity were revealed.      Appellant does not

persuade this court that the trial court abused its discretion when it did not

allow the identity of the CI to be revealed.

      Appellant next contends that the trial court erred when it denied his

motion for judgment of acquittal when the Commonwealth clearly failed to

produce sufficient evidence to prove the element of possession in regard to

the charge of possession of a controlled substance with the intent to deliver

and the conspiracy thereof.

      Before addressing the merits of appellant’s argument, this court notes

that in his statement of errors complained of on appeal, appellant only

stated that there was not sufficient evidence to establish a conviction for

conspiracy. Appellant did not raise a sufficiency issue concerning the PWID

conviction.    The failure to include an issue in the statement of errors

complained of on appeal results in a waiver of that issue.               See


                                     - 12 -
J. S63044/17


Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998).           Consequently,

appellant waived the issue of the sufficiency of the evidence concerning the

conviction for PWID.

     We shall now review the merits of appellant’s appeal as it pertains to

the conspiracy conviction.

                 A claim challenging the sufficiency of the
           evidence is a question of law. Commonwealth v.
           Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751
           (2000). In that case, our Supreme Court set forth
           the sufficiency of the evidence standard:

                 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.
                 Commonwealth v. Karkaria, 533 Pa.
                 412, 625 A.2d 1167 (1993). 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.
                 Commonwealth v. Santana, 460 Pa.
                 482, 333 A.2d 876 (1975).           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.
                 Chambers, 528 Pa. 558, 599 A.2d 630
                 (1991).

           Id. at 319, 744 A.2d at 751.

Commonwealth v. Morgan, 913 A.2d 906, 910 (Pa.Super. 2006).

     Conspiracy is defined in Section 903 of the Crimes Code as follows:


                                   - 13 -
J. S63044/17


           A person is guilty of conspiracy with another person
           or persons to commit a crime if with the intent of
           promoting or facilitating its commission he:

           (1)    agrees with such other person or persons
                  that they or one or more of them will
                  engage in conduct which constitutes such
                  crime or an attempt or solicitation to
                  commit such crime; or

           (2)    agrees to aid such other person or
                  persons in the planning or commission of
                  such crime or of an attempt or
                  solicitation to commit such crime.

18 Pa.C.S.A. § 903.

     The underlying offense, possession with intent to deliver, is defined as:

           (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 criminal conspiracy, the
           Commonwealth must establish that the defendant
           (1) entered into an agreement to commit or aid in an
           unlawful act with another person or persons, (2) with


                                   - 14 -
J. S63044/17


          a shared criminal intent and (3) an overt act was
          done    in   furtherance    of   the   conspiracy.
          Commonwealth v. Hennigan, 753 A.2d 245, 253
          (Pa.Super. 2000).    “This overt act need not be
          committed by the defendant; it need only be
          committed by a co-conspirator.” Id.

          As our Court has further explained with respect to
          the agreement element of conspiracy:

               The essence of a criminal conspiracy is a
               common understanding, no matter how it
               came into being, that a particular
               criminal objective be accomplished.
               Therefore, a conviction for conspiracy
               requires proof of the existence of a
               shared criminal intent. An explicit or
               formal agreement to commit crimes can
               seldom, if ever, be proved and it need
               not be, for proof of a criminal partnership
               is almost invariably extracted from the
               circumstances that attend its activities.
               Thus, a conspiracy may be inferred
               where it is demonstrated that the
               relation, conduct, or circumstances of the
               parties, and the overt acts of the
               co-conspirators sufficiently prove the
               formation of a criminal confederation.
               The conduct of the parties and the
               circumstances surrounding their conduct
               may create a web of evidence linking the
               accused to the alleged conspiracy beyond
               a reasonable doubt.            Even if the
               conspirator did not act as a principal in
               committing the underlying crime, he is
               still criminally liable for the actions of his
               co-conspirators in furtherance of the
               conspiracy.

          Commonwealth v. Johnson, 719 A.2d 778, 784-
          785 (Pa.Super. 1998).

Commonwealth v. McCall, 911 A.2d 992, 996 (Pa.Super. 2006).



                                  - 15 -
J. S63044/17


      Appellant argues that there was no evidence to suggest that there was

a conspiracy between Weidner and appellant to possess the heroin that was

recovered at the Fruit Avenue address.

      The trial court determined that the following evidence was sufficient to

establish a conspiracy:

                  In the case at hand, [appellant] and Weidner
            are cousins. In the first buy, [appellant] shows up in
            a vehicle owned by Weidner’s mother. The phone
            number used is linked to a phone found with
            Weidner. The second and third buys are set up
            using the same telephone number for the first buy
            and occurred at the residence where the drugs at
            issue were found.      [Appellant] and Weidner are
            together when they [sic]search warrants are issued.

Trial court opinion, 6/14/17 at 9.

      Appellant argues that these facts are insufficient to establish a

conspiracy. However, the same phone number was used to arrange the buy

handled by appellant and the two handled by Weidner.              The two buys

handled by Weidner were conducted at or near the Fruit Avenue address

where the heroin was found. Further, appellant drove to the buy in a vehicle

owned by Weidner’s mother. As appellant himself admits, a conspiracy can

be proven by circumstantial evidence. See Commonwealth v. Perez, 931

A.2d 703, 708 (Pa.Super. 2007).        Viewing the evidence in the light most

favorable   to   the   prevailing   party,   the   evidence   presented   by   the

Commonwealth was sufficient to establish conspiracy.




                                      - 16 -
J. S63044/17


     Finally, appellant contends that the trial court erred when it imposed a

clearly unreasonable sentence in violation of a fundamental norm where a

sentence of confinement should address a defendant’s rehabilitative needs.

Appellant challenges the discretionary aspects of his sentence.

                 [T]he proper standard of review when
           considering whether to affirm the sentencing court’s
           determination is an abuse of discretion.

           ....

           Challenges to the discretionary aspects of sentencing
           do not entitle an appellant to review as of right.
           Commonwealth v. Sierra, [752 A.2d 910, 912
           (Pa.Super. 2000)].       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).

Moury, 992 A.2d 162, 169-170 (citation omitted).

     Here, we begin our analysis by determining whether appellant has

complied with the procedural requirements of challenging the discretionary

aspects of his sentence.   First, appellant timely filed his notice of appeal.



                                    - 17 -
J. S63044/17


Second, appellant raised the issue that the trial court imposed a sentence

that was excessive and did not take into account his rehabilitative needs in

his post-sentence motion which essentially is the issue before this court.

However, appellant included a Rule 2119(f) statement in his brief in which

he avers that even though he was sentenced within the sentencing

guidelines, it is clearly unreasonable to stay within the guidelines because

his convictions were highly speculative. Similarly, in the argument section of

his brief, appellant addresses the speculative nature of his convictions.

While appellant does not strictly comply with Rule 2116(a) of the

Pennsylvania Rules of Appellate Procedure in that the issue raised is not

exactly raised in the argument section of the brief, this court will address the

issue raised in the argument and in the Rule 2119(f) statement because we

can render meaningful appellate review.

      Appellant does not cite to any statute or case law to indicate that he

has raised a substantial question in that his role in the possession of heroin

and the conspiracy to possess heroin is highly speculative such that he

should receive a lighter sentence. This court does not find that he raised a

substantial question. Appellant was found guilty by a jury of his peers and

was sentenced by the trial court within the standard range.         Appellant’s

belief that the facts of the case were speculative does not raise a substantial

question that the trial court imposed a sentence that was not appropriate

under the Sentencing Code.



                                     - 18 -
J. S63044/17


     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 12/12/2017




                                 - 19 -
