J-S41021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

DARIUS WALKER

                            Appellant                        No. 157 MDA 2015


            Appeal from the Judgment of Sentence October 31, 2014
               In the Court of Common Pleas of Lycoming County
              Criminal Division at No(s): CP-41-CR-0000823-2014


BEFORE: ALLEN, J., LAZARUS, J., and PLATT, J.* FILED AUGUST 21, 2015

CONCURRING AND DISSENTING MEMORANDUM BY LAZARUS, J.:

        I concur with regard to the majority’s disposition of Walker’s

possession with intent to deliver, possession of drug paraphernalia, and

corruption convictions.      I respectfully dissent, however, with regard to the

majority’s    affirmance     of   Walker’s     conviction   for   criminal   use   of   a

communication facility.1



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  I also part ways with the majority’s conclusion that Walker has waived this
issue on appeal. Walker cites to the relevant statute, 18 Pa.C.S. § 7512 of
the Crimes Code, and argues that the Commonwealth failed to present
evidence: (1) of the identity of the third parties with whom he exchanged
the relevant text messages; and (2) that Walker had any physical interaction
with those third parties in order to satisfy the underlying felony element of
the statute.
J-S41021-15



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

our Court stated that “if the underlying felony never occurs, then the

defendant has facilitated nothing and cannot be convicted under section

7512.” Here, the “intended” underlying felony for purposes of a criminal use

of a communication facility conviction would be the actual delivery or sale of

drugs to the third parties with whom Walker allegedly exchanged the text

messages on March 23, 2014.             Accordingly, I believe that the underlying

felony did not occur.

        Moreover, I also do not believe that a substantial step occurred toward

the commission of that underlying felony (delivery/sale of drugs to third

parties) where:      Walker never made it to the predetermined Williamsport

locations to sell the drugs, never approached the intended third party

buyers, and did not otherwise attempt to exchange drugs for money with

them. To me this case is on all fours with the facts of Moss and I would rely

on that decision to find Walker’s section 7512 conviction infirm. See Moss,

supra at 383-84 (where “record [was] devoid of any evidence that the

contemplated transaction between [defendant and third party] actually

occurred or that [they] took substantial step toward completion of

transaction they discussed,” section 7512 sentence reversed).

        For these reasons, I write separately.



____________________________________________


2
    Notably, the majority does not even reference Moss in its decision.


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