J-S87023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DAMIAN MICHAELO HICKS

                            Appellant                 No. 734 MDA 2016


        Appeal from the Judgment of Sentence Dated January 22, 2016
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0003528-2015

BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.:                         FILED JANUARY 26, 2017

        Appellant Damian Michaelo Hicks appeals from the judgment of

sentence imposed after he was convicted of criminal use of a communication

facility, possession of a controlled substance, delivery of a controlled

substance, and possession of drug paraphernalia.1 We affirm.

        In late 2014, Montgomery County Detective James Wood, a member

of the narcotics enforcement team, began investigating a suspected drug

dealer known as “Joey.” Detective Wood had three phone numbers for Joey,

and communicated with Joey by text message and phone calls to those

numbers. Through text messages, Detective Wood told Joey about a friend


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 7512; 35 P.S. § 780-113(a)(16), (30), and (32).
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(undercover      Trooper     Daniel    Reed)     who   was   interested   in   buying

methamphetamine. On January 28, 2015, Detective Wood and Joey

exchanged the following messages:

       Jan 28, 2015, 9:29 AM

       [Joey:]       Did you talk to your boy[2]

       [Wood:]       He will be good around 3 or 4

       [Joey:]       Ok hes gonna have to come to me

       [Wood:]       I will tell him

       [Joey:]       Ok

       Jan 28, 2015, 3:46 PM

       [Joey:]       Yo ur boy didnt call me

       Jan 28, 2015, 4:03 PM

       [Wood:]       I called him

       [Joey:]       I hope his official and good money

       [Wood:]       Absolutely! Treat him good and good money will
                     follow

       [Joey:]       Ok

       Jan 28, 2015, 4:21 PM

       [Joey:]       Please dude i hope this aint no setup i got kids and a
                     famiky bro just please dnt do it to me if it is bro ima
                     trust you


____________________________________________


2
  Detective Wood testified that this was a reference to Trooper Reed. N.T.,
1/7/16, at 32.




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       [Wood:]       No way dude. My boy is doing you a favor. He justs
                     want a little for his efforts. And can be a good
                     customer

N.T., 1/7/16, at 28-34; Ex. C-1 at 9-11 (typos in original).

       That same day, through text messages and phone calls, Trooper Reed

arranged to meet Joey in the parking lot of a Walmart in Berks County to

buy 2 grams of crystal methamphetamine. N.T., 1/8/16, at 107-08. At

approximately 4:30 p.m., surveillance officers saw Appellant leave his house

at 1102 North Front Street in Reading, Pennsylvania, and drive his black

Mitsubishi Galant to the Walmart parking lot. N.T., 1/7/16, at 80-85. Trooper

Reed, who had been waiting in the parking lot, got out of his car and entered

Appellant’s. Trooper Reed introduced himself as “D.” Appellant responded,

“my name is D too, a lot of people call me Joey.” Appellant handed Trooper

Reed a baggie of powder. Trooper Reed, who was expecting crystals, not

powder,3 complained. Appellant replied, “sorry man, it’s my shake.” 4 After

persuading Appellant to lower the price, Trooper Reed gave Appellant $210

in exchange for the powder. Trooper Reed discussed buying larger quantities

of methamphetamine from Appellant if his customers liked this sample. N.T.,



____________________________________________


3
  The powder form indicated that the methamphetamine had been cut, or
diluted, with another substance. N.T., 1/8/16, at 111-12.
4
 “Shake” refers to a drug that is not pure. N.T., 1/7/16, at 38; 1/8/16, at
112.



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1/8/16, at 108-15. The powder Appellant sold Trooper Reed was later tested

and determined to contain methamphetamine. N.T, 1/7/16, at 36.

        Later the same day, Joey and Detective Wood exchanged the following

text messages:

        [Joey:]      Jim you sure your boy is good? Just a little nervous

        [Wood:]      Yeah he’s great. He was nervous too. He said what
                     you gave him looked like all shake though

        [Joey:]      Down to the last of the batch of that

        [Wood:]      I know but you know how first impressions are!

        [Joey:]      Not even worried about that dude i always have
                     good shit and for the crazy low price so hopefully we
                     can start business up that way

        [Wood:]      As long as its not all cut to hell. I want fire!![5]

        [Joey:]      I got you dude trust me

N.T., 1/7/16, at 38-39; Ex. C-1 at 12-13.

        Police did not arrest Appellant immediately after the January 28, 2015

transaction because the amount of methamphetamine involved was small.

They planned to arrange a larger purchase from Appellant before arresting

him. They set up such a transaction in June of 2015, but it was never

completed. Appellant was arrested after that failed transaction. N.T., 1/7/16,

at 45-47, 56-58.


____________________________________________


5
    “Fire” refers to a pure form of the drug. N.T., 1/7/16, at 39.




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       Following a jury trial on January 7-8, 2016, Appellant was convicted of

criminal use of a communication facility, possession of a controlled

substance, delivery of a controlled substance, and possession of drug

paraphernalia. The jury found Appellant not guilty of attempted delivery of a

controlled substance, a charge related to the June 2015 failed transaction.

On January 22, 2016, the trial court sentenced Appellant to consecutive

terms of incarceration of 18 months to 5 years for delivery of a controlled

substance, and 9 months to 3 years for criminal use of a communication

facility.

       On January 29, 2016, Appellant, pro se, filed a petition to remove

counsel and represent himself. On February 1, 2016, Appellant filed a pro se

post-sentence motion, alleging that his trial counsel was ineffective and that

the trial court “erroneously sentenced [Appellant] to [an] aggravated

sentence without stating any reason or reasons for such a sentence.” Post-

Sentence Mot., 2/1/16. On March 1, 2016, Appellant’s trial counsel filed a

motion to withdraw, citing Appellant’s desire that he withdraw in light of

Appellant’s ineffective assistance of counsel allegations. On March 2, 2016,

the trial court granted trial counsel’s motion to withdraw and appointed new

counsel. On April 26, 2016, after a hearing at which Appellant’s new counsel




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appeared and argued for Appellant, the trial court denied Appellant’s pro se

post-sentence motion.6 Appellant filed a timely notice of appeal.

       In this counseled appeal, Appellant raises the following issues:

       A. Whether the evidence presented at trial was insufficient as a
       matter of law wherein the Commonwealth’s evidence presented
       at trial failed to establish that the defendant made any
       telephonic communication, as there was no surveillance, phone
       records, nor text verifications that the defendant was ever on
       the other line of the telephone?

       B. Whether the verdict was against the weight of the evidence
       wherein the verdict is so contrary to evidence and shocks one’s
       sense of justice where the Commonwealth’s evidence presented
       at trial failed to establish that the defendant made any
       telephonic communication, as there was no surveillance, phone
       recordings, nor text verifications that the defendant was ever on
       the other line of the telephone?

       C. Whether the court’s sentence was illegal, unconstitutional[,]
       and cruel and unusual wherein the sentence extended beyond
       the statutory guidelines and was unreasonably excessive?

Appellant’s Brief at 4.



____________________________________________


6
  Usually, a pro se motion filed while a defendant is represented by counsel
is considered a legal nullity. See Commonwealth v. Nischan, 928 A.2d
349, 355 (Pa. Super.), appeal denied, 936 A.2d 40 (Pa. 2007). Here,
although Appellant filed his pro se post-sentence motion while represented
by counsel, he had previously filed a motion to remove counsel and
represent himself. Moreover, by the time the trial court appointed new
counsel, the period for filing a post-sentence motion had expired. Under
these circumstances, the trial court did not err in considering the pro se
motion. See Commonwealth v. Leatherby, 116 A.3d 73, 79 (Pa. Super.
2015) (pro se post-sentence motion not a legal nullity where trial counsel
did not file one and court did not appoint new counsel until after filing
deadline).




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                            Sufficiency of the Evidence

       Appellant claims that the evidence was insufficient to prove criminal

use of a communication facility.7 Specifically, he argues that there was

insufficient evidence identifying him as the person who used the phone.

       Our standard of review is well-settled:

       The standard we apply in reviewing the sufficiency of evidence is
       whether, viewing all the evidence admitted at trial in the light
       most favorable to the verdict winner, there is sufficient evidence
       to enable the factfinder to find every element of the crime
       beyond a reasonable doubt. In applying the above test, we may
       not weigh 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 of the crime beyond a reasonable doubt
       by means of 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. Hennigan, 753 A.2d 245, 253 (Pa. Super. 2000)

(quoting Commonwealth v. Vetrini, 734 A.2d 404, 406-07 (Pa. Super.

1999) (citations, quotation marks, and brackets omitted)).

       Criminal use of communication facility is defined by statute:
____________________________________________


7
  He does not challenge the sufficiency of the evidence with respect to the
other crimes of which he was convicted.




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      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 Controlled
      Substance, Drug, Device and Cosmetic Act [35 P.S. §§ 780-101
      et seq.]. Every instance where the communication facility is
      utilized constitutes a separate offense under this section.

18 Pa.C.S. § 7512(a) (footnote omitted). A telephone is a “communication

facility.” Id. § 7512(c).

      Appellant relies on Commonwealth v. Moss, 852 A.2d 374 (Pa.

Super. 2004), in which three defendants challenged the sufficiency of the

evidence to support their convictions for criminal use of a communication

facility. In Moss, we held that the crime has three elements: (1) knowing

and intentional use of a communication facility; (2) knowing, intentional, or

reckless facilitation of an underlying felony; and (3) occurrence of the

underlying felony. Id. at 382. We further held that having a drug-related

conversation with a known drug trafficker, by itself, was insufficient to

support a conviction. Id. at 384. There must also be evidence that the

“conversations facilitated a specific underlying felony that was in fact carried

out.” Id.

      Here, Appellant does not dispute that a felony (delivery of a controlled

substance) was actually carried out. Instead, Appellant contends that the

evidence was insufficient to prove that he participated in the phone calls and

text messages that facilitated the felony. We disagree.




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J-S87023-16


       The Commonwealth presented evidence that, shortly before Appellant

sold methamphetamine to Trooper Reed, “Joey” sent text messages to

Detective Wood regarding a drug sale to Wood’s friend (Trooper Reed).

During the transaction, Appellant told Trooper Reed, “people call me Joey.”

Shortly after the transaction, “Joey” sent text messages to Detective Wood

discussing details of the transaction. This evidence was sufficient for the jury

to conclude that Appellant sent the text messages facilitating the drug

transaction with Trooper Reed.8

                              Weight of the Evidence

       Next, Appellant claims that the verdict was contrary to the weight of

the evidence. His argument in support of this claim is almost identical to his

argument in support of his insufficiency claim.

       Before reaching the merits of this claim, we must determine whether it

has been properly preserved.9 Under the Rules of Criminal Procedure:


____________________________________________


8
  We note that the information alleged Appellant committed the crimes at
issue between January 28, 2015, and June 9, 2015. Because we hold that
the evidence was sufficient to prove criminal use of a communication facility
with respect to the January 2015 sale to Trooper Reed, we need not address
whether there was sufficient evidence to prove use of a communication
facility with respect to the June 2015 incident.
9
  Although the Commonwealth does not raise the issue of waiver, we may
raise the issue sua sponte. See Commonwealth v. Edmondson, 718 A.2d
751, 752 n.7 (Pa. 1998) (“This Court may raise the issue of waiver sua
sponte”).




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       A claim that the verdict was against the weight of the evidence
       shall be raised with the trial judge in a motion for a new trial:

       (1) orally, on the record, at any time before sentencing;

       (2) by written motion at any time before sentencing; or

       (3) in a post-sentence motion.

Pa.R.Crim.P. 607(A). Failure to comply with Rule 607 will result in waiver,

even if an appellant includes a weight of the evidence claim in his Pa.R.A.P.

1925(b) statement and the trial court addresses the issue in its Pa.R.A.P.

1925(a) opinion. Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa.

2009), cert. denied, 559 U.S. 1111 (2010).

       Instantly, although Appellant filed a post-sentence motion, that motion

did not include a weight claim. Moreover, we have not found, and Appellant

has not identified,10 any place where his weight of the evidence claim was

raised before the trial court. Although Appellant included a weight claim in

his Rule 1925(b) statement and the trial court addressed the issue in its Rule

1925(a) opinion, these actions did not preserve the issue. Therefore,

Appellant’s weight of the evidence claim is waived. See Sherwood, 982

A.2d at 494.


____________________________________________


10
   Pennsylvania Rule of Appellate Procedure 2117 requires the appellant to
include in his brief a “statement of the case” including a “statement of place
of raising or preservation of issues.” Pa.R.A.P. 2117(c). Rule 2119 requires
the appellant to set forth similar information in the argument section of his
brief. Pa.R.A.P. 2119(e).




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      Even if Appellant had properly preserved his weight claim, he would

not be entitled to relief. “The trial court, in the exercise of its discretion, may

award a new trial on the basis that the verdict is against the weight of the

evidence if the verdict is so contrary to the evidence as to shock one’s sense

of justice.” Commonwealth v. Gibson, 720 A.2d 473, 480 (Pa. 1998),

cert. denied, 528 U.S. 852 (1999). As discussed in connection with

Appellant’s sufficiency argument, our review of the record convinces us that

the verdict is supported by the evidence. The trial court concluded that the

verdict was not against the weight of the evidence, and we discern no abuse

of discretion in that ruling. See Trial Ct. Op. at 6.

                                    Sentence

      In his third issue, Appellant challenges his sentence. First, he argues

that the sentence “was illegal, unconstitutional, and cruel and unusual in

that it was outside of the sentencing guidelines and did not fully take into

considerations [sic] the Appellant’s cooperation with the Commonwealth, nor

his family’s circumstances.” Appellant’s Brief at 13. Second, he argues that

the criminal use of communication facility charge should have merged with

the delivery of a controlled substance charge for purposes of sentencing.

Id.

                             Discretionary Aspects

      Appellant’s claim that his sentence was outside the sentencing

guidelines and did not take into consideration his cooperation or family


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circumstances is a challenge to the discretionary aspects of his sentence, not

the legality of his sentence. See Commonwealth v. Cruz-Centeno, 668

A.2d 536, 545 (Pa. Super. 1995) (claim that sentence was excessive

because     trial   court   overemphasized     seriousness   of   offense   without

considering mitigating factors was a challenge to discretionary aspects of

sentence), appeal denied, 676 A.2d 1195 (Pa. 1996); Commonwealth v.

Rhoades, 527 A.2d 148, 154 (Pa. Super. 1987) (claim that sentence was

excessive and was outside range suggested by sentencing guidelines was a

challenge to the discretionary aspects of the sentence), appeal denied, 557

A.2d 343 (Pa. 1989).

        “[A] challenge to the discretionary aspects of a sentence is not

appealable as of right.” Commonwealth v. Colon, 102 A.3d 1033, 1042

(Pa. Super. 2014), appeal denied, 109 A.3d 678 (Pa. 2015). Before we

exercise jurisdiction to reach the merits of Appellant’s claim, we must

determine:

        (1) whether the appeal is timely; (2) whether Appellant
        preserved his issue; (3) whether Appellant’s brief includes a
        concise statement of the reasons relied upon for allowance of
        appeal with respect to the discretionary aspects of sentence; and
        (4) whether the concise statement raises a substantial question
        that the sentence is appropriate under the sentencing code.

Id. at 1042-43. Only if the appeal satisfies each of these four requirements

may we proceed to decide the substantive merits of Appellant’s claim. Id. at

1043.




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      Here, Appellant satisfied the first Colon requirement by filing a timely

notice   of   appeal.    However,    he     failed    to   satisfy    two   other     Colon

requirements. The only sentencing claim Appellant raised in his post-trial

motion was that the trial court sentenced him to an aggravated sentence

without stating any reason for doing so. Post-Sentence Mot. at 2. Appellant

therefore failed to preserve the discretionary sentencing issue he now raises

on appeal. Further, as the Commonwealth notes, Appellant’s brief fails to

include a concise statement of the reasons relied upon for allowance of an

appeal. Commonwealth’s Brief at 13; see Commonwealth v. McNear, 852

A.2d 401, 408 (Pa. Super. 2004) (if appellant fails to include concise

statement and Commonwealth objects, issue is waived). Consequently, we

will not address the merits of Appellant’s discretionary sentencing claim.

                                      Legality

      Appellant   also    argues    that    the      charges   of    criminal   use   of   a

communication facility and delivery of a controlled substance should have

merged for sentencing purposes. Appellant’s Brief at 13-14.

      The Commonwealth contends that this claim is waived because

Appellant did not raise it before the trial court. Commonwealth’s Brief at 15.

However, because this claim implicates the legality of Appellant’s sentence,

Appellant could not waive it. See Commonwealth v. Baldwin, 985 A.2d

830, 833 (Pa. 2009) (merger claim implicates legality of sentence);

Commonwealth v. Kitchen, 814 A.2d 209, 214 (Pa. Super. 2002) (“the


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legality of sentence is never waived”), aff'd, 839 A.2d 184 (Pa. 2003)

(mem.).

      In addressing the question whether two convictions merge for

sentencing purposes, our standard of review is de novo and our scope of

review is plenary. Baldwin, 985 A.2d at 833. The Sentencing Code

provides:

      No crimes shall merge for sentencing purposes unless the crimes
      arise from a single criminal act and all of the statutory elements
      of one offense are included in the statutory elements of the
      other offense. Where crimes merge for sentencing purposes, the
      court may sentence the defendant only on the higher graded
      offense.

42 Pa.C.S. § 9765. As the Court in Baldwin explained, Section 9765

“prohibits merger 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.” Baldwin, 985

A.2d at 833.

      “The preliminary consideration under Section 9765 is whether the two

crimes at issue arose from a single act.” Commonwealth v. Yeomans, 24

A.3d 1044, 1050 (Pa. Super. 2011). In assessing this consideration, “the

proper focus is not whether there was a ‘break in the chain’ of criminal

activity, but rather, whether ‘the actor commits multiple criminal acts

beyond that which is necessary to establish the bare elements of the

additional crime.’” Id. (citation omitted). In Yeomans, the defendant used

the internet to arrange to have sex with a fourteen-year-old girl, offered to

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pay the girl in exchange for sex when he met her in person, and engaged in

sexual intercourse with her. Id. at 1048. Yeomans pleaded guilty to one

count each of statutory sexual assault, corruption of minors, and patronizing

prostitutes. Id. at 1045. On appeal, Yeomans argued that the trial court

should have merged the charge of corruption of a minor with one of the

other two charges. Id. at 1046. This Court rejected his argument,

explaining:

      In this case, although [Yeomans] pled guilty to a “single
      encounter” with the fourteen-year-old victim in arranging over
      the internet to meet with her, and agreeing to pay her for sex
      once he met her in person, [Yeomans] committed “multiple
      distinct criminal acts,” beyond the sexual activity he engaged in
      with the victim, thereby supporting his statutory sexual assault
      conviction. As [Yeomans] committed three separate criminal
      acts, the crimes for which he was convicted do not merge.

Id. at 1050 (internal citation omitted).

      Instantly, Appellant committed two separate criminal acts: (1) using a

communication facility (cell phone) to arrange a drug transaction, and (2)

delivering methamphetamine to Trooper Reed. Because Appellant’s crimes

did not arise from a single criminal act, merger does not apply. See

Yeomans, 24 A.3d at 1050.

      Moreover, not all of the statutory elements of one of Appellant’s

offenses are included in the elements of the other. Delivery of a controlled

substance requires: (1) delivering (2) a controlled substance (3) without

legal authorization. 35 P.S. § 780-113(30). Criminal use of a communication

facility has three elements: (1) knowingly and intentionally using a

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communication facility; (2) knowingly, intentionally, or recklessly facilitating

an underlying felony; and (3) occurrence of the underlying felony. Moss,

852 A.2d at 382. Thus, Appellant could have used a communication facility

to facilitate a felony without delivering a controlled substance. Likewise,

Appellant could have delivered a controlled substance without using a

communication facility. Thus, the second requirement for merger has not

been met. See Baldwin, 985 A.2d at 833.11

       In summary, we conclude that the evidence was sufficient to support

the verdict; Appellant’s weight of the evidence and discretionary sentencing

claims are waived; and Appellant’s sentence is legal.

       Judgment of sentence affirmed.




____________________________________________


11
   Appellant argues that in Commonwealth v. Robertson-Dewar, 829
A.2d 1207 (Pa. Super.), appeal denied, 839 A.2d 352 (Pa. 2003), this
Court held that a conviction for criminal use of a communication facility
merges with the underlying crime. Appellant’s Brief at 13. However, as the
Commonwealth points out, the sole issue before this Court in Robertson-
Dewar was the sufficiency of the evidence to prove sexual abuse of
children. Commonwealth’s Brief at 16 (citing Robertson-Dewar, 829 A.2d
at 1211). Although the trial court had found that Robertson-Dewar’s
convictions for criminal use of a communications facility merged with his
convictions for the underlying offense (sexual abuse of children), this Court
did not address the merger issue. We therefore find Appellant’s reliance on
Robertson-Dewar misplaced.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/26/2017




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