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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                    v.                  :
                                        :
DARRELL LANDERS,                        :         No. 1217 EDA 2013
                                        :
                         Appellant      :


           Appeal from the Judgment of Sentence, March 14, 2013,
             in the Court of Common Pleas of Philadelphia County
                 Criminal Division at No. 51-CR-0003725-2011


BEFORE: FORD ELLIOTT, P.J.E., BOWES AND SHOGAN, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 21, 2014

      Following a jury trial, Darrell Landers was found guilty of possession

with intent to deliver a controlled substance and possession of a controlled

substance.   Herein, he appeals the promptness of his trial, the sufficiency

and weight of the evidence, and the discretionary aspects of his sentence.

No relief is due.

      The facts, as summarized by the Honorable Earl W. Trent, Jr., are as

follows:

                    The Commonwealth presented evidence of an
             investigation involving suspected narcotics activity
             and the observation of a narcotics transaction.
             Police Officer Robert Montague, badge number 6480,
             testified regarding his role in a narcotics
             investigation on November 11, 2010. N.T. 1/29/13
             at 9.       Officer Montague conducted narcotics
             surveillance in the area of 5000 Griscom Street. Id.
             at 12.      At approximately 11:20 a.m., Officer
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          Montague, from a distance of approximately half a
          block, observed Appellant standing outside of
          5022 Griscom Street.          Id. at 12, 15.         At
          approximately 11:50 a.m., a white male, later
          identified   as    Robert     Kleinfelder,   approached
          Appellant.      Id.      After a brief conversation,
          Mr. Kleinfelder handed Appellant an undetermined
          amount of United States currency. Id. at 13. After
          receiving the currency, Appellant walked up steps in
          between 5022 and 5024 Griscom Street and
          returned to Mr. Kleinfelder a few seconds later. Id.
          Appellant was out of Officer Montague’s view upon
          ascending the steps. N.T. 1/29/13 at 16. Appellant
          then handed small objects to Mr. Kleinfelder, who
          accepted them and walked northbound on Griscom
          Street.    Id.      Officer Montague put out flash
          information    to    fellow    officers   pertaining to
          Mr. Kleinfelder. Id. at 17. Officer Sean Kennelly,
          badge number 3221, responded to the flash
          information and stopped Mr. Kleinfelder once he
          appeared to be out of the seller’s view. Id. at 43,
          45.     Recovered from Mr. Kleinfelder were two
          packets, one yellow and one clear, containing
          marijuana. Id. at 44, 64.

                 At approximately 12:15 p.m., a white female,
          later identified as Catherine Price, approached
          Appellant, who was standing outside the same
          property. N.T. 1/29/13 at 17. Their interaction
          mirrored that of Appellant and Mr. Kleinfelder.
          Ms. Price handed Appellant an undetermined amount
          of United States currency. Id. at 17-18. Appellant
          walked up the same steps for a few seconds,
          returned and handed Ms. Price small objects. Id. at
          18. Upon receiving the objects, Ms. Price walked
          southbound on Griscom Street.           Id.  Officer
          Montague again put out flash information to fellow
          officers, this time regarding Ms. Price. Id. Officer
          Andre Hudgens, badge number 7402, responded to
          the flash information provided by Officer Montague.
          Id. at 53. Officer Hudgens stopped Ms. Price on
          Griscom Street and recovered one purple tinted
          packet containing crack cocaine from her left hand.
          N.T. 1/29/13 at 53, 65.


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                   At approximately 12:35 p.m., Appellant
             proceeded to walk northbound at which time
             Officer Montague put out flash information to have
             him stopped. Id. at 19. Officer Thomas Fitzgerald,
             badge number 4698, received a radio call regarding
             Appellant and subsequently stopped him on the
             5000 block of Griscom Street. Id. at 38. Recovered
             from Appellant was $49 United States currency. Id.

Trial court opinion, 11/5/13 at 1-3.

        On January 28, 2013, appellant proceeded to a jury trial and was

convicted of the aforementioned crimes.       On March 14, 2013, the court

denied appellant’s oral post-verdict motion challenging the weight of the

evidence,1 and he was sentenced to an aggregate term of one to two years’

incarceration to be followed by three years’ reporting probation.2            On

March 19, 2013, appellant filed a motion to modify sentence; the motion

was denied by order of court the same day.         (Docket #4.)       This timely

appeal followed.

        The following issues have been presented for our review:

             A.    The trial court abused its discretion by denying
                   Appellant’s Motion to Dismiss where the
                   Commonwealth was not ready to commence
                   trial until 29 days after the adjusted run date.

             B.    The evidence was insufficient to enable the
                   jury to find that Appellant possessed
                   contraband beyond a reasonable doubt.


1
    See notes of testimony, 3/14/13 at 3-4.
2
  Appellant was found eligible for the Commonwealth’s Recidivism Risk
Reduction Incentive Program.


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             C.     Appellant is entitled to a new trial because the
                    trial court abused its discretion by denying
                    Appellant’s motion that the verdict was against
                    the weight of the evidence.

             D.     Appellant’s sentence should be vacated
                    because the trial court abused its discretion by
                    sentencing Appellant to one-to-two years
                    where the standard sentencing range was
                    three-to-twelve months.

Appellant’s brief at ii.

      Appellant first asserts that the trial court abused its discretion by

denying appellant’s motion to dismiss pursuant to the speedy trial rule,

Pa.R.Crim.P., Rule 600, 42 Pa.C.S.A.       We note with dismay that the trial

court failed to make any specific findings at the hearing on this motion, or in

its Rule 1925(a) opinion. Nevertheless, our review of the record indicates

that Rule 600 was not violated.

             Our standard of review relating to the application of
             Rule 600 is whether the trial court abused its
             discretion. Our scope of review is limited to the
             evidence on the record of the Rule 600 evidentiary
             hearing and the findings of the trial court. We must
             view the facts in the light most favorable to the
             prevailing party.

Commonwealth v. Robbins, 900 A.2d 413, 415 (Pa.Super. 2006), appeal

denied, 907 A.2d 1102 (Pa. 2006).

      Charges may only be dismissed under Rule 600 where a defendant on

bail is not brought to trial within 365 days of the date on which the criminal

complaint against him was filed. See Commonwealth v. Dixon, 907 A.2d

468, 476 (Pa. 2006); see also Pa.R.Crim.P., Rule 600(A)(3) (trial “shall


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commence not later than 365 days from the date on which the complaint is

filed.”). However, Rule 600 also provides for the exclusion of certain time

from its calculation.   Subtracting excluded time results in an adjusted run

date, and if trial commences before the adjusted run date, there is no

violation of the rule.     Commonwealth v. Tickel, 2 A.3d 1229, 1233

(Pa.Super. 2010), appeal denied, 23 A.3d 541 (Pa. 2011). In calculating

the Rule 600 run date, certain periods must be excluded including “delay at

any stage of the proceedings as results from the unavailability of the

defendant . . . or any continuance granted at the request of the defendant.”

Rule 600(C)(3). Additionally, the run date may be extended by “excusable

delay”; that is, delays that “occur as a result of circumstances beyond the

Commonwealth’s control and despite due diligence.”         Commonwealth v.

Brown, 875 A.2d 1128, 1135 (Pa.Super. 2005), appeal denied, 891 A.2d

729 (Pa. 2005).

      Appellant was arrested on November 11, 2010, and the complaint was

filed the following day.       Thus, the mechanical run date was Monday,

November 14, 2011, as November 12, 2011, fell on a Saturday. 3                 See

1 Pa.C.S.A. § 1908.      Appellant’s trial commenced on January 28, 2013.

However,   accounting    for   both   excludable   and   excusable   delays,    an




3
 We note that appellant and the Commonwealth have failed to observe that
November 12, 2011 was a Saturday.       (See appellant’s brief at 19;
Commonwealth’s brief at 11.)


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examination of the record reveals the Commonwealth was duly diligent and

brought appellant to trial before the adjusted run date.

      Reviewing the parties’ briefs and the scant argument made at the

hearing before trial on January 29, 2013, we note the Commonwealth

concedes that the time period of November 30, 2010, to January 25, 2011,

constitutes    a   56-day   delay   chargeable    to   the   Commonwealth.

(Commonwealth’s brief at 11-12.) On November 30, 2010, the police officer

was not present for the preliminary hearing due to an illness, and the police

laboratory had not provided a seizure analysis.     The Commonwealth also

accepts responsibility for a 65-day delay. (Id. at 12.) On January 25, 2011,

the preliminary hearing was continued because the laboratory still had not

provided the seizure analysis.

      On March 31, 2011, 139 days after the filing of the complaint, a

preliminary hearing was held and appellant was held for court on all charges.

The case was continued to April 21, 2011, for the provision of discovery.

Subsequently, the case was scheduled for trial for May 18, 2011; 187 days

had elapsed since the filing of the complaint. The Commonwealth presented

a plea offer which appellant rejected, and the docket indicates that the trial

court set the date of June 16, 2011, by an order granting a motion for a

continuance, but the record is silent as to who made the motion. 4 However,


4
 If the motion was made by the defense, the ensuing 29-day period would
have been excludable. Commonwealth v. Hill, 736 A.2d 588, 591 n.9 (Pa.
1999).


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even assuming that the motion was made by the Commonwealth, only

216 days had elapsed since the filing of the complaint by the June 16, 2011

listing.

       On June 16, 2011, appellant requested a jury trial, which resulted in a

235-day delay as the next date for which the case was listed for trial was

February 6, 2012. Such time is excludable as the Commonwealth was duly

diligent during that period, and appellant requested a jury trial necessitating

reassigning the case to another judge.      In the alternative, this time was

clearly excusable as scheduling matters are beyond the control of the

Commonwealth.       Commonwealth v. Ramos, 936 A.2d 1097, 1104

(Pa.Super. 2007), appeal denied, 948 A.2d 803 (Pa. 2008).            Thus, the

adjusted run date was advanced 235 days from the mechanical run date of

November 14, 2011, giving the Commonwealth until Friday, July 6, 2012, to

try appellant.

       Thereafter, appellant concedes      that   the   next time   period was

excludable; specifically, the 203-day period between February 6, 2012, to

August 27, 2012, as the trial court granted a joint request for a continuance.

See Commonwealth v. Hunt, 858 A.2d 1234, 1243 (Pa.Super. 2004)

(en banc), appeal denied, 875 A.2d 1073 (Pa. 2005) (joint requests for a

continuance are excludable). This excludable time adjusted the run date to

Friday, January 25, 2013.




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      The docket indicates that on May 23, 2012, trial was scheduled for

September 4, 2012. However, on September 4, 2012, when the trial was

scheduled to begin, one of the Commonwealth’s police witnesses was

unavailable due to an injury sustained while on duty. The court granted a

78-day continuance to November 13, 2012.        Appellant does not challenge

this time-period, and the adjusted run date was again advanced to Monday,

April 15, 2013, as April 13, 2013, was a Saturday.

      By the November 13, 2013 listing, the parties again made a joint

request for a 76-day continuance to January 28, 2013, the date appellant’s

trial actually began. Again, as joint requests are excludable, appellant does

not challenge this 76-day period, which set the adjusted run date to July 1,

2013, as June 30, 2013, fell on a Sunday.

      Clearly, the Commonwealth complied with Rule 600 as appellant was

tried on January 28, 2013.      Appellant was brought to trial within the

Rule 600 period, and trial counsel had no reason for filing a Rule 600

motion.

      Next, appellant claims the evidence was insufficient to enable the jury

to find he possessed the contraband beyond a reasonable doubt.          When

addressing a claim that the evidence was not sufficient to sustain the

verdict, we must determine whether, viewing all the evidence admitted at

trial and all reasonable inferences therefrom in a light most favorable to the

Commonwealth as the verdict winner, the trier of fact could conclude that all



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of the elements of the offense were established beyond a reasonable doubt.

Commonwealth v. Bardo, 709 A.2d 871, 876-877 (Pa. 1998).                     The

credibility of witnesses is within the province of the trier of fact, who is free

to believe all, part, or none of the evidence.    Commonwealth v. Bagari,

579 A.2d 942, 944-945 (Pa.Super. 1990).

      In the instant case, we have thoroughly reviewed the evidence

adduced at trial.   Viewing that evidence in the light most favorable to the

Commonwealth as the verdict winner, we conclude that the evidence was

sufficient to sustain the verdicts. We rely on the well-reasoned opinion of

the trial court in support of our decision to affirm on this issue. (Trial court

opinion, 11/5/13 at 4-6.)

      Appellant also argues that the verdict was against the weight of the

evidence.

            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 and that a
            new trial should be granted in the interest of justice.

                  This does not mean that the exercise of
            discretion by the trial court in granting or denying a
            motion for a new trial based on a challenge to the


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            weight of the evidence is unfettered. In describing
            the limits of a trial court’s discretion, we have
            explained[,] [t]he term “discretion” imports the
            exercise of judgment, wisdom and skill so as to
            reach a dispassionate conclusion within the
            framework of the law, and is not exercised for the
            purpose of giving effect to the will of the judge.
            Discretion must be exercised on the foundation of
            reason,    as    opposed   to   prejudice,  personal
            motivations, caprice or arbitrary actions. Discretion
            is abused where the course pursued represents not
            merely an error of judgment, but 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.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis in the

original) (citations omitted).

      In the instant case, the trial court rejected appellant’s claim. The trial

court reasoned as follows:

            Appellant pointed to the lack of drugs recovered
            from either his person or immediate area. N.T.
            3/14/2013 at 4. Appellant’s argument hinges upon
            the dubious premise that a PWID conviction cannot
            be sustained as to sales which exhaust the seller's
            stash. Officer Montague detailed two transactions
            during which Appellant maintained his position. N.T.
            1/29/13 at 13-18. After the conclusion of the second
            transaction, Appellant was observed leaving the
            location. Id. at 19. Considering that the officers’
            testimony did not demonstrate that Appellant’s
            supply was recently replenished, the jury may have
            reasonably interpreted the abandonment of his
            position and the lack of narcotics recovered from
            Appellant as consistent with the tactic of selling from
            a finite stash of narcotics, possibly until depletion.

                   The jury reasonably accepted police testimony
            detailing Appellant’s perceived execution of narcotics


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             sales, and attached significant weight thereto. The
             recovery of narcotics from the suspected buyers may
             have been viewed as corroborating the officers’
             testimony.      Furthermore, the jury may have
             determined that the cash recovered from Appellant
             constituted the proceeds of the previously observed
             sales. The jury’s findings of fact, based largely upon
             the officers’ testimony, are certainly not shocking to
             one’s sense of justice.

Trial court opinion, 11/5/13 at 7. After reviewing the record, and deferring

to the trial court’s determination of credibility, we conclude that the trial

court did not abuse its discretion in finding the verdicts were not against the

weight of the evidence.

      Finally, appellant challenges the discretionary aspects of his sentence.

Prior to addressing this issue, we must first determine if his claim is properly

before us.

             An appellant who challenges the discretionary
             aspects of a sentence in a criminal matter shall 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.          The
             statement shall immediately precede the argument
             on the merits with respect to the discretionary
             aspects of sentence.

Pa.R.A.P. 2119(f). “A failure to include the Rule 2119(f) statement does not

automatically waive an appellant’s argument; however, we are precluded

from reaching the merits of the claim when the Commonwealth lodges an

objection to the omission of the statement.” Commonwealth v. Love, 896

A.2d 1276, 1287 (Pa.Super. 2006), appeal denied, 940 A.2d 363 (Pa.

2007). Appellant has failed to include a Rule 2119(f) statement in his brief,


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and the Commonwealth has objected to this omission.          (Commonwealth’s

brief at 29-30.) Accordingly, appellant’s final issue is waived.

      Judgment of sentence affirmed.



Shogan, J. joins the Memorandum.



Bowes, J. concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/21/2014




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