J-A22027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                       v.

DERRICK WAYNE MOYER

                            Appellant               No. 161 MDA 2016


          Appeal from the Judgment of Sentence September 24, 2015
              In the Court of Common Pleas of Lycoming County
             Criminal Division at No(s): CP-41-CR-0000244-2015


BEFORE:       GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                      FILED NOVEMBER 10, 2016

        Appellant, Derrick Wayne Moyer, appeals from the judgment of

sentence entered following a jury trial in the Lycoming County Court of

Common Pleas. Moyer argues that the evidence adduced at trial was

insufficient to support his convictions, that the verdict was against the

weight of the evidence, and that the sentence imposed was manifestly

excessive. We affirm.

        In January 2015, Moyer was arrested and charged with intimidation of

a witness,1 criminal use of a communication facility,2 and possessing an

instrument of crime.3 At trial, the Commonwealth presented the following

____________________________________________


1
    18 Pa.C.S.A. § 4952(a)(1).
2
    18 Pa.C.S.A. § 7512.
3
    18 Pa.C.S.A. § 907(a).
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evidence. The victim, Gage Wood, testified that he knew Moyer prior to the

alleged offenses because the two had been previously housed together at

Lycoming County Prison. In the winter of 2014, Wood was a witness for the

Commonwealth in a murder case against Da’Ran Sears. Wood planned to

present testimony at the murder trial concerning “incriminating evidence of

what [Sears] told [Wood] at the prison regarding the murder case.” Notes of

Testimony, 9/15/15, at 12 (“N.T.”). Wood indicated that Moyer was friends

with Sears.

      On January 18, 2015, Moyer placed a message on Wood’s public

Facebook page referring to Wood as a rat. Wood deleted the message and

privately messaged Moyer. The ensuing conversation, unedited, was as

follows.

      Wood: You can be next

      Moyer: What I will get Yuh fucked up

      Wood: Ya we will ser

      Wood: See

      Wood: You got me Fucked up apparently

      Moyer: Nigga yu a bitch cuz

      Wood: But since You insist, y’all both can enjoy the witness
      intimidation and tampering charges.

      Wood: I’m saying you can slide through

      Moyer: Bitch I’m on house arrest but where u stay at

      Moyer: Aye yo bitch where you live

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      Wood: Port

      Moyer: Yu rat

      Moyer: What street rat

      Wood: Nice I’ll let Harry know how you are

      Moyer: Shut up bitch

      Wood: Sixth

      Wood: Ave

      Moyer: Address

      Wood: 911 sixth

      Wood: Corner of park

      Wood: Way

      Moyer: Grier nigga

      Wood: Perfect slide, I’m white though

      Moyer: IMA leave yu alone before Yuh hop on my case yu fukcin
      rat yu told on my may but slide thru Grier whenever

      Moyer: Yeah nigga just let me kno when yu gonna slide

      Wood: That sucks, wasn’t my man’s that’s all that matters to me

      Wood: don’t worry I won’t hop on your case, you just caught a
      new case dumbass

      Wood: They on the way. Second or third house?

Trial Court Opinion, 1/8/16, at 4-5.

      Wood testified that he sent the message “[Y]ou can be next” to let

Moyer know that he would report Moyer for harassing and intimidating him.


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Further, Wood’s reference to “Harry” was known to both parties as the

intensive supervised bail officer on Moyer’s case. Wood ultimately told law

enforcement officers about Moyer’s messages on January 23, 2015, once he

“processed the severity of what could happen.” N.T., 9/15/15, at 22.

      Once Wood reported the messages, Agent Stephen Sorage spoke to

Moyer. Agent Sorage testified that Moyer indicated that he knew Wood had

provided statements against Sears, but that he did not know if Wood “was

still telling.” Id. at 34. Agent Sorage asked Moyer, “if you knew that [Wood]

was telling, but didn’t know that [Wood] was still telling, why would you post

what you posted . . . if it wasn’t to keep [Wood] from telling?” Id. Agent

Sorage responded to Moyer’s subsequent silence by asking, “am I right or

wrong?” Id. Moyer responded, “right.” Id. Following this conversation,

Agent Trent Peacock, asked Moyer about the messages Moyer sent to Wood.

Moyer admitted to Agent Peacock that he initiated the messages by calling

Wood a rat, and that he used his cellular telephone to send the messages to

Wood through Facebook.

      Moyer did not present any witnesses or offer any testimony on his

behalf. The jury convicted Moyer of all three charges. On September 24,

2015, the trial court sentenced Moyer to 60 to 120 months’ incarceration for

intimidation of a witness, and a consecutive term of 12 to 24 months’

incarceration for criminal use of a communication facility. Both sentences fell

within the aggravated range of the sentencing guidelines. The trial court did

not impose further penalty for Moyer’s possessing an instrument of crime

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conviction. Following the denial of post-sentence motions, this timely appeal

followed.

      Moyer presents the following issues for our review, renumbered for

ease of disposition.

      I.     Whether the lower court abused its discretion by imposing
             a manifestly excessive sentence of 6-12 years.

      II.    Whether the Commonwealth presented sufficient evidence
             with respect to all the charges.

             a. Whether the Commonwealth failed to produce sufficient
                evidence that [Moyer’s] comment on Facebook, calling
                the victim a “rat” was [intended] to keep the victim
                from refraining or informing or reporting any
                information, document or thing relating to the
                commission of the crime with respect to Da’Ran
                Sears’[s] homicide case.

             b. Whether there was sufficient evidence to sustain a
                conviction for criminal use of a communication facility
                and possession of an instrument of a crime, as no crime
                was committed.

      III.   Whether the verdict was against the weight of the
             evidence with respect to all counts, as the verdict was so
             contrary to the evidence, so as to shock one’s sense of
             justice.

             a. Whether the verdict was against the weight of the
                evidence with respect to intimidation of a witness.

             b. Whether the verdict was against the weight of the
                evidence with respect to criminal use of a
                communication facility and possessing an instrument of
                crime.

Appellant’s Brief, at 4.




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      First, Moyer challenges the discretionary aspects of his sentence.

Moyer preserved his argument concerning the discretionary aspects of his

sentence through a post-sentence motion.

      “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). “Two requirements must be met before we

will review this challenge on its merits.” Id. (citation omitted).

      “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. (citation omitted). “Second, the

appellant must show that there is a substantial question that the sentence

imposed is not appropriate under the Sentencing Code.” Id. (citation

omitted). That is, “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) (citation omitted).

      We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists. See id. “Our inquiry must focus on

the reasons for which the appeal is sought, in contrast to the facts

underlying the appeal, which are necessary only to decide the appeal on the

merits.” Id. (citation omitted); see also Pa.R.A.P. 2119(f). In the present




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case, Moyer’s appellate brief contains the requisite Rule 2119(f) concise

statement.

      First, Moyer contends in his Rule 2119(f) statement that the trial court

abused its discretion by sentencing him in the aggravated statutory range,

thereby creating a manifestly excessive and unreasonable sentence. While

the fact that a sentence is within the statutory limits does not preclude

appellate review, a “bald assertion that a sentence is excessive does not by

itself raise a substantial question justifying this Court’s review of the merits

of the underlying claim.” Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa.

Super. 2012) (citation omitted). Here, like in Fisher, Moyer does not cite a

specific provision of the sentencing code or a fundamental norm of

sentencing that he alleges the trial court violated. Without either, Moyer’s

assertion of excessiveness does not raise a substantial question. See id.

Accordingly, Moyer’s first challenge to the discretionary aspects of his

sentence is without merit.

      Additionally, Moyer argues in his Rule 2119(f) statement that the trial

court abused its discretion by fashioning a sentence without fully considering

his lack of criminal history, age, and circumstances. However, this Court has

repeatedly held that the mere assertion that the sentencing court failed to

give adequate weight to sentencing factors of record, without more, does

not   raise   a   substantial   question   for   appellate   review.   See,   e.g.,

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014)

(en banc), appeal denied, 104 A.3d 1 (Pa. 2014). Because Moyer fails to

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allege anything other than the trial court’s failure to adequately consider

factors of record, he has failed to raise a substantial question for review.

Thus, his second challenge to the discretionary aspects of his sentence also

fails.

         In his second issue on appeal, Moyer argues that the Commonwealth

failed to present sufficient evidence to prove that he committed the crimes

of intimidation of a witness, criminal use of a communication facility, and

possession of instrument of crime. See Appellant’s Brief, at 6, 9-12. Moyer

contends that the Commonwealth only established that he wrote the word

“rat” on Wood’s Facebook wall. Moyer avers that, without additional

evidence that he intended to intimidate Wood, he cannot be found to have

intimidated a witness. Further, without his conviction for intimidation of a

witness, Moyer contends that the Commonwealth would be unable to prove

the crimes of criminal use of a communication facility or possession of an

instrument of crime.

                The standard we apply in reviewing the sufficiency of the
         evidence is whether, viewing all of 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. In applying the
         above test, we may not weight the evidence and substitute our
         judgment for that of the fact-finder. In addition, we note that the
         facts and circumstances established by the Commonwealth need
         not preclude every possibility of innocence. Any doubts regarding
         a defendant’s guilt may be resolved by the fact-finder 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. The Commonwealth may sustain its burden of
         proving every element beyond a reasonable doubt by means of

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J-A22027-16


      wholly circumstantial evidence. Moreover, in applying the above
      test, the entire record must be evaluated and all evidence
      actually received must be considered. Finally, the trier of fact
      while passing upon the credibility of witnesses and the weight of
      the evidence produced, is free to believe all, part or none of the
      evidence.

Commonwealth v. Helsel, 53 A.3d 906, 917-18 (Pa. Super. 2012)

(citation omitted; brackets in original).

      The crime of intimidation of a witness is defined in relevant part as

follows.

      Intimidation of Witnesses or Victims

      (a)   Offense defined.- A person commits an offense if, with
            the intent to or with the knowledge that his conduct will
            obstruct, impede, impair, prevent or interfere with the
            administration of criminal justice, he intimidates or
            attempts to intimidate any witness or victim to:

            (3) Withhold any testimony, information, document or
            thing relating to the commission of a crime from any law
            enforcement officer, prosecuting official or judge.

18 Pa.C.S.A. § 4952(a)(3). Further,

      [A]ctual intimidation of a witness is not an essential element of
      the crime. The crime is committed if one, with the necessary
      mens rea, “attempts” to intimidate a witness or victim …. The
      trier of facts, therefore, could find that appellant attempted to
      intimidate his accuser and that he did so intending or, at least,
      having knowledge that his conduct was likely to, impede, impair
      or interfere with the administration of criminal justice …. The
      Commonwealth is not required to prove mens rea by direct
      evidence. Frequently such evidence is not available. In such
      cases, the Commonwealth may rely on circumstantial evidence.

Commonwealth v. Collington, 615 A.2d 769, 770 (Pa. Super. 1992).

      Based upon our review of the record, we agree with the trial court that

the evidence is sufficient to find the offense of intimidation of a witness.

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Here, Wood testified that he was planning to provide testimony against

Sears in Sears’s murder trial. Wood knew that Moyer was friends with Sears.

Moyer knew that Wood was planning to testify against Sears and called

Wood a “rat” twice in reference to Wood’s planned testimony. Moyer

repeatedly asked Wood where he lived. Further, when interviewed by police,

Moyer admitted that he posted “rat” to Wood’s Facebook wall in order to

keep Wood from testifying against Sears.

      The jury, as the trier of fact, was free to believe all, part, or none of

the testimony presented by the witnesses. It is clear from the verdict that

the jury found Wood’s testimony credible. The contents and timing of

Moyer’s messages, together with the circumstances surrounding them and

Wood’s testimony, were sufficient for the jury to infer that Moyer intended to

intimidate Wood in order to prevent him from testifying against Sears. Thus,

Moyer’s claim that there was insufficient evidence to support the charge of

intimidation of witnesses or victims fails.

      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 of 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.




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18 Pa.C.S.A. § 7512. 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.”

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

citations omitted).

      In order to prove possession of an instrument of crime, the

Commonwealth must show that the defendant “possesses any instrument of

crime with intent to employ it criminally.” 18 Pa.C.S.A. § 907. An instrument

of crime is defined as “[a]nything specially made or specially adapted for

criminal use” or “[a]nything used for criminal purposes and possessed by the

actor under circumstances not manifestly appropriate for lawful uses it may

have.” 18 Pa.C.S.A. § 907(d).

      The Commonwealth proved, beyond a reasonable doubt, that Moyer

knowingly and intentionally used a cellular telephone to post the message

“rat” on Wood’s Facebook wall and used his phone to privately message

Wood. Further, Moyer was in possession of this cellular telephone at the time

of his arrest. Because we found that Moyer’s challenge to the sufficiency of

the evidence in relation to his intimidation of a witness conviction fails, the

Commonwealth has met its burden of showing that Moyer committed the

underlying felony necessary for a conviction for criminal use of a


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J-A22027-16



communication facility and possessing an instrument of crime. Thus, like his

challenge to the sufficiency of the evidence for his intimidation of a witness

conviction Moyer’s challenges to his criminal use of a communication device

and possessing an instrument of crime convictions also fail.

      Finally, Moyer argues that his convictions were against the weight of

the evidence. A challenge to the weight of the evidence “concedes that the

evidence is sufficient to sustain the verdict, but seeks a new trial on the

ground that the evidence was so one-sided or so weighted in favor of

acquittal   that   a   guilty   verdict   shocks   one’s   sense    of   justice.”

Commonwealth v. Orie, 88 A.3d 983, 1015 (Pa. Super. 2014), appeal

denied, 99 A.3d 925 (Pa. 2014) (citation 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. 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. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (internal

quotes and citations omitted).

      To support his weight of the evidence claim, Moyer essentially

reiterates his sufficiency of the evidence argument. See Appellant’s Brief, at




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7, 15-18. Moyer argues that the verdict “shocks one’s sense of justice” and

should not be allowed to stand. See id., at 7.

      At trial, the Commonwealth presented evidence in the form of the

testimony of Wood, Agent Sorage, and Agent Peacock, as well as the

Facebook messages between Wood and Moyer. Moyer did not testify or call

any witnesses on his behalf. Therefore, Moyer’s guilt hinged on the jury’s

determination   of   the   Commonwealth’s     witnesses’   credibility   and   its

interpretation of the Facebook messages. It is clear that the jury found the

testimony of Wood, Agent Sorage and Agent Peacock credible, and

concluded that Moyer’s intention through the Facebook messages was to

intimidate Wood and prevent him from testifying against Sears. We discern

no abuse of discretion in the court’s assessment of the jury’s determinations

related to the credibility of witnesses or the weight of evidence at trial. We

cannot agree with Moyer that the trial court’s guilty verdict “shocks one’s

sense of justice.” Thus, we conclude that Moyer’s final issue merits no relief.

      Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/10/2016




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