J-S49042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

ELIJAH GILBERT THOMPSON,

                            Appellant                    No. 2396 EDA 2015


           Appeal from the Judgment of Sentence September 4, 2015
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0001276-2015
                            CP-48-CR-0003771-2014

BEFORE: PANELLA, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                                FILED JULY 20, 2016

        Elijah Gilbert Thompson (“Appellant”) appeals, pro se, from the

judgment of sentence entered in the Court of Common Pleas of Northampton

County after a jury convicted him on three counts of possession with the

intent to deliver (“PWID”)1 and related charges. We affirm.

        On November 19, 2014, Appellant was arrested and charged with

PWID heroin and possession of drug paraphernalia following the execution of

a search warrant at his residence in Easton and for his vehicle. Recovered

from Appellant’s residence were rubber bands used to package heroin into

bundles,    a   package     of   marijuana,    a   notebook    documenting   heroin

distribution, and a cell phone with a number corresponding to the number
____________________________________________


1
    35 Pa.C.S.A. § 780-113(a)(30).



*Former Justice specially assigned to the Superior Court.
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contacted by a confidential informant.           Recovered from Appellant’s vehicle

were 150 packets of heroin and a digital scale.             The searches were the

culmination of surveillance employing a confidential source to arrange a

controlled buy from Appellant.

       Prior to trial, Appellant filed a pro se motion to remove appointed

counsel in favor of self-representation, which, after a hearing taking place on

June 26, 2015, the trial court granted. C.R. #29. The court appointed new

counsel to serve as stand-by counsel.             Jury trial commenced on July 6,

2015, and, as noted supra, culminated with verdicts of guilt on all counts.

On September 4, 2015, the court imposed an aggregate sentence of thirty-

three to ninety months’ incarceration. Appellant filed timely post-sentence

motions, which the court denied. This timely appeal follows.2

       In Appellant’s “Statement of Questions Presented,” he raises the

following three claims:

       1. WAS THE VERDICT AGAINST THE GREAT WEIGHT OF THE
          EVIDENCE WHERE THE WITNESSES (THE CI/CS, SGT.
          HOMOKI) WERE NEVER MADE AVAILABLE TO BE CROSS
____________________________________________


2
  Appellant filed his notice of appeal prior to the court’s imposition of
sentence and the denial of his post-sentence motions for a new trial. Rule of
Appellate Procedure 905(a)(5), however, provides:

       A notice of appeal filed after the announcement of a
       determination but before the entry of an appealable order shall
       be treated as filed after such entry and on the day thereof.

Pa.R.A.P. 905(a)(5).        Accordingly, we deem Appellant’s notice of appeal
timely filed.



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         EXAMINED, CORROBORATE TESTIMONY, AND COULD HAVE
         LIED?

      2. WAS THE VERDICT AGAINST THE GREAT WEIGHT OF THE
         EVIDENCE WHERE THERE WAS INSUFFICIENT EVIDENCE
         THAT DID NOT ESTABLISH BEYOND A REASONABLE DOUBT
         THAT DEFENDANT/APPELLANT HAD CONSCIOUS DOMINION
         VER [SIC] AREA WHERE CONTRABAND WAS ALLEGEDLY
         FOUND?


      3. WAS THE VERDICT AGAINST THE GREAT WEIGHT OF
         EVIDENCE WHERE INSP. CRISAFULLI TESTIFIED THAT NO
         MENTION OF HEROIN WAS EVER MADE DURING THE
         ALLEGED PHONE CALL CONVERSATION TO PROVE CRIMINAL
         USE OF COMMUNICATION FACILITY?

Appellant’s brief at 1-2.

      Although Appellant enumerates three distinct claims, he merges them

in the ten-page argument that follows such that we address his claims as

presented. Appellant first argues that his verdicts were “against the great

weight of the evidence” because police officers provided false testimony and

the confidential informant was not made available for cross-examination.

Under such circumstances, Appellant contends,

      it is entirely irrational [sic] for one to “know” what truly
      happened during these so-called “direct buy/controlled buy”
      operations unless one was actually present during these alleged
      events. The police weren’t present and the evidence of this is
      the fact that Insp. Crisafulli testified that the [confidential
      informant] “was under constant surveillance.” Belief and actual
      knowing are two different things with two different meanings.

Appellant’s brief at 6.

      Police testimony recounting the procedures taken with the confidential

informant and in placing the phone call to the purported heroin dealer was


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further unreliable, Appellant maintains, because the phone call was never

recorded and was answered by an unknown male.           Appellant’s brief at 7.

Officers’ testimony that the confidential informant was free of any money or

contraband prior to receiving the controlled buy money, that they observed

Appellant exchange heroin for money with the confidential informant, and

that the purchased drugs field-tested positive for heroin “contradict[ed]

physical facts and the laws of nature.” Id. In this regard, Appellant argues

       [t]here was insufficient evidence presented at trail [sic] to
       support these accusations.         The phone calls were never
       recorded. The Cooperating Source [confidential informant] was
       never strip-searched, nor cavity searched (indicating clearly that
       the Cooperating Source could have hid contraband and money in
       a place where police were unwilling to look). There was never
       any of the pre-recorded money recovered from me. There was
       no fingerprints [sic] found on contraband. Each time there was
       an alleged “controlled purchase” the “stamp” on the packaging
       materials was different (indicating inconsistency). The find of a
       LG phone unregistered to me with the same number is
       insignificant because no physical facts were presented to argue
       the Appellant answered the phone nor was any mention of
       heroin ever discussed in these conversations. The Cooperating
       Source’s identity was withheld from the record and he was never
       available at any hearing to be cross-examined or corroborated
       these accusations. Officer’s testimony is the result not only of
       his conscious decision to withhold the truth but his apparent
       inability to accurately recall simple details of the incidents.

Id. at 8.3


____________________________________________


3
   We note that Appellant introduces this passage with a reference to the
insufficiency of the evidence. Notwithstanding this reference, the substance
of his argument implicates the weight of the evidence rather than the
sufficiency.



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     Appellant’s argument then segues into assailing what he terms an

invalid search and seizure of incriminating evidence from the residence in

which he was located.    Id. at 9-10.     Officers subsequently lied at the

preliminary hearing and trial when they testified that contraband was also

discovered on Appellant’s person, he maintains.        Id. at 10-11.    Also

unsubstantiated was testimony of a dog-sniff search of a vehicle parked at

the residence, Appellant continues, as no paperwork associated with the

search and arrest mentions a dog-sniff.   Id. at 11.   Appellant implies the

seizure of the vehicle and its subsequent search at the Easton Police

Department “evidence garage” was suspect. Id. at 12.

     The unreliability of evidence against him is further established,

Appellant posits, when one considers testimony recounting that Appellant’s

phone conversation with his mother while he was “under duress.” According

to Appellant, he was asked by his mother if “they found ‘it’,” to which he

replied “yes.” “No one can fully understand what the appellant meant when

he replied yes or what he thought “it” was, but the appellant,” Appellant

argues.   Id.   Finally, Appellant recites authority on the sufficiency of

evidence pertaining to possession with intent to deliver unlawful narcotics

without discussing how such authority applies to the present case.     Id. at

12-13.

     The Commonwealth responds that Appellant’s claims challenge the

weight of the evidence and, as such, are waived for appellate purposes



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because Appellant failed to raise them before the trial court in his post-

senetnce motions. We agree.

     The following legal principles guide this Court’s review of challenges to

the weight of the evidence:

     A motion for a new trial based on a claim that the verdict is
     against the weight of the evidence is addressed to the discretion
     of the trial court. A new trial should not be granted because of a
     mere conflict in the testimony or because the judge on the same
     facts would have arrived at a different conclusion. Rather, the
     role of the trial judge is to determine that notwithstanding all the
     facts, certain facts are so clearly of greater weight that to ignore
     them or to give them equal weight with all the facts is to deny
     justice. It has often been stated that a new trial should be
     awarded when the jury's verdict is so contrary to the evidence as
     to shock one's sense of justice and the award of a new trial is
     imperative so that right may be given another opportunity to
     prevail.

     An appellate court's standard of review when presented with a
     weight of the evidence claim is distinct from the standard of
     review applied by the trial court[.] 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.

Commonwealth v. Antidormi, 84 A.3d 736, 757-58 (Pa.Super. 2014)

(citations and quotation marks omitted).

     It is axiomatic that an appellant first must raise a weight of the

evidence claim in either a motion prior to sentencing, an oral motion at


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sentencing, or a post-sentence motion to preserve the claim for appellate

review.    Commonwealth v. Griffin, 65 A.3d 932, 938 (Pa.Super. 2013).

Here, the record establishes that Appellant failed to raise any of his appellate

claims in his self-styled “Motion for New Traili [sic],” “Motion for Judgment of

Acquittal,” or “Motion to Compel Discovery” filed with the trial court after

imposition of sentence.4          As such, there is no trial court exercise of

discretion for this Court to review with respect to Appellant’s weight of the

evidence claims, and we dismiss the present appeal on this basis.

       Even if the claims as presented before us were preserved, we would be

constrained to dismiss them because of the substantial deficiencies in

Appellant’s brief.     Appellant presents a rambling thirteen-page argument

comprising, first, the identification of evidence5 he deems unreliable and,

second, a recitation of various precepts of law, without making any attempt

to develop the argument to establish how the law would apply to the

evidence in such a way as to require a new trial.         We are, accordingly,

incapable of conducting meaningful judicial review of his argument. While

we are not insensitive to the fact Appellant is proceeding pro se, we decline

____________________________________________


4
   Appellant’s post-sentence motions invoked, in the broadest terms, the
“rights of mankind” he claimed were inherent in the Declaration of
Independence, the Constitution of the United States, and the Acts of
Congress. Appellant addressed neither trial evidence nor his sentence in his
post-sentence motions.
5
  Appellant repeatedly fails to provide the place in the record where the
referenced testimony or evidence appears, in contravention of Rule 2119(c).



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to become his counsel. “When issues are not properly raised and developed

in briefs, when the briefs are wholly inadequate to present specific issues for

review, a court will not consider the merits thereof.”     Commonwealth v.

Miller, 721 A.2d 1121, 1124 (Pa.Super. 1998) (citations omitted). Further,

although this Court is “willing to liberally construe materials filed by a pro se

litigant, pro se status confers no special benefit upon the appellant.”

Commonwealth v. Adams, 882 A.2d 496, 498 (Pa.Super. 2005).

      Judgment of sentence is affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2016




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