J-S46013-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

OLIN JAMAR HORSEY

                            Appellant               No. 1383 EDA 2014


            Appeal from the Judgment of Sentence March 24, 2014
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0006368-2012


BEFORE: MUNDY, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.:                       FILED NOVEMBER 04, 2015

       Appellant, Olin Jamar Horsey, appeals from the March 24, 2014,

judgment of sentence of 36 to 72 months’ incarceration for possession of

cocaine with the intent to deliver, 15 days to 30 days’ incarceration for

possession of marijuana, and one year of probation for possession of drug

paraphernalia, imposed by the trial court after it found Appellant guilty of

possession of cocaine with the intent to deliver, possession of cocaine,

possession of marijuana, and possession of drug paraphernalia.1          After

careful review, we affirm.
____________________________________________


1
   35 P.S. §§ 780-113(a)(30), (16), (31), and (32), respectively. The
possession of cocaine conviction merged with the possession of cocaine with
intent to deliver conviction for sentencing purposes. Further, we note that
Appellant was originally sentenced on February 28, 2014 to 36 to 60
months’ incarceration for possession of cocaine with the intent to deliver, 15
days to 30 days’ incarceration for possession of marijuana, and one year of
(Footnote Continued Next Page)
J-S46013-15



      The trial court summarized the relevant facts and procedural history of

this case as follows.

             On August 28, 2012, Officer Matthew Goldschmidt
             was on duty and working undercover along with
             Officer Hennas, when they observed [Appellant]
             walking along the street with a clear bag of
             marijuana in his right hand. [Appellant] was placed
             under arrest and ultimately charged with several
             crimes under the Controlled Substance, Drug, Device
             and Cosmetic Act.        On November 26, 2012,
             [Appellant], through counsel, filed a motion to
             suppress. On January 4, 2013, a hearing was held
             on [Appellant’s] motion and the court heard
             testimony from Officer Matthew Goldschmidt. By
             order dated March 6, 2013, the court denied
             [Appellant’s] motion.

                   Following a bench trial, [Appellant] was found
             guilty of possession of cocaine with the intent to
             deliver, possession of cocaine, possession of
             marijuana, and possession of drug paraphernalia.
             [Appellant] was sentenced on February 28, 2014 …
             [and on] March 24, 2014, [Appellant] was
             resentenced [].

                   [Appellant filed a post-sentence motion on
             March 26, 2014, which the trial court denied on April
             4, 2014.]

                       _______________________
(Footnote Continued)

probation for possession of drug paraphernalia. However, on March 24,
2014, the trial court determined that the February 28, 2014 sentence was
illegal, and resentenced Appellant as indicated. The trial court does not
explain its conclusion regarding the illegality of Appellant’s February 28,
2014 sentence, however, in the February 28, 2014 sentence the minimum
was more than one-half of the maximum.            See Trial Court Opinion,
11/14/14, at 2; 42 Pa.C.S.A. § 9756(b)(1).




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                On May 1, 2014, [Appellant] filed his notice of
           appeal[.] Following a directive from [the trial] court,
           [Appellant] filed his Concise Statement of Matters
           Complained of on Appeal on May 14, 2014.

Trial Court Opinion, 11/14/14, at 1-2.

     On appeal, Appellant presents five issues for our review.


           1. Whether the Suppression Court erred in denying
              [the] motion to suppress physical evidence,
              recovered from a search incident to Appellant’s
              arrest, where Appellant’s arrest was unlawful
              because he was initially detained without
              reasonable suspicion, in violation of Appellant’s
              right to a fair search and seizure under the Fourth
              Amendment of the United States Constitution,
              and Article 1, Section 8 of the Pennsylvania State
              Constitution?

           2. Whether the Suppression Court erred in denying
              [the] motion to suppress physical evidence,
              recovered from [the] warrant-less [sic] search of
              Appellant’s vehicle, because [the] search was
              conducted without probable cause, and there was
              no reasonable suspicion to support the canine
              search that led to [the] car’s impoundment and
              subsequent search interior search [sic], in
              violation of Appellant’s right to a fair search and
              seizure under the Fourth Amendment of the
              United States Constitution, and Article 1, Section
              8 of the Pennsylvania State Constitution?

           3. Whether there was sufficient evidence to support
              Appellant’s conviction for Possession with Intent
              to Deliver a Controlled Substance?

           4. Whether the lower court’s verdict, finding
              Appellant guilty, was against the weight of the
              evidence?

           5. Whether the mandatory minimum sentence of
              three (3) to six (6) years imposed by the trial

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J-S46013-15


               court should be vacated, where the Superior
               Court has held that [18] Pa.C.S.A. Section 7508 is
               unconstitutional on its face, pursuant to the
               United States Supreme Court holding Alleyne v.
               United States, that mandatory minimum
               sentencing statutes are unconstitutional because
               they permit the trial court to increase a
               defendant’s     minimum      based      upon     a
               preponderance of the evidence, rather than a jury
               based on reasonable doubt?

Appellant’s Brief at 5-6.

      In his first two issues, Appellant challenges the trial court’s denial of

his suppression motion.     We are guided by the following principles in

conducting our review of these issues.

                  Our standard of review in addressing a
            challenge to the denial of a suppression motion is
            limited to determining whether the suppression
            court’s factual findings are supported by the record
            and whether the legal conclusions drawn from those
            facts are correct.      Because the Commonwealth
            prevailed before the suppression court, we may
            consider only the evidence of the Commonwealth
            and so much of the evidence for the defense as
            remains uncontradicted when read in the context of
            the record as a whole.        Where the suppression
            court’s factual findings are supported by the record,
            we are bound by these findings and may reverse
            only if the court’s legal conclusions are erroneous.
            Where … the appeal of the determination of the
            suppression court turns on allegations of legal error,
            the suppression court’s legal conclusions are not
            binding on an appellate court, whose duty it is to
            determine if the suppression court properly applied
            the law to the facts. Thus, the conclusions of law of
            the courts below are subject to our plenary review.




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Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citations and

quotation marks omitted), cert. denied, Jones v. Pennsylvania, 131 S.Ct.

110 (2010).

      In his first issue, Appellant contends that his arrest was unlawful

where “Officer Goldschmidt had a hunch that Appellant was carrying

marijuana, based upon observing him handling a plastic baggie, containing

an unknown green material, [such that] there were, clearly, insufficient facts

to support any intelligent conclusion that in fact Appellant was carrying

marijuana based merely on observing the plastic baggie from the passenger

seat of his unmarked police vehicle, where he did not observe Appellant

engage in street transactional drug activity.”    Appellant’s Brief at 15-16.

Appellant claims that the “facts culminating in his detention did not give rise

to reasonable suspicion to support an investigatory stop, which rendered

Appellant’s arrest, and the search incident to Appellant’s arrest, inadmissible

fruit of the poisonous tree.” Id. at 16.

      It is well settled that there are three categories of interactions

between police and citizens.

                   The   Fourth    Amendment       of  the    U.S.
            Constitution and Article 1, Section 8 of our state
            Constitution protect citizens from unreasonable
            searches and seizures.      To safeguard this right,
            courts require police to articulate the basis for their
            interaction with citizens in increasingly intrusive
            situations:

                        The first of these is a “mere encounter”
                  (or request for information) which need not be

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J-S46013-15


                 supported by any level of suspicion, but carries
                 no official compulsion to stop or to respond.
                 The second, an “investigative detention” must
                 be supported by a reasonable suspicion; it
                 subjects a suspect to a stop and a period of
                 detention, but does not involve such coercive
                 conditions as to constitute the functional
                 equivalent of an arrest. Finally, an arrest or
                 “custodial detention” must be supported by
                 probable cause.

           Commonwealth v. Downey, 39 A.3d 401, 405 (Pa.
           Super. 2012) (citation omitted).

Commonwealth v. McAdoo, 46 A.3d 781, 784 (Pa. Super. 2012), appeal

denied, 65 A.3d 413 (Pa. 2012).

     Here, the trial court concluded that Officer Goldschmidt had probable

cause to arrest Appellant. Our Supreme Court has explained the following.

           Probable cause is made out when “the facts and
           circumstances which are within the knowledge of the
           officer at the time of the arrest, and of which he has
           reasonably trustworthy information, are sufficient to
           warrant a man of reasonable caution in the belief
           that the suspect has committed or is committing a
           crime.” Commonwealth v. Rodriguez, 526 Pa.
           268, 585 A.2d 988, 990 (1991). The question we
           ask is not whether the officer’s belief was “correct or
           more likely true than false.” Texas v. Brown, 460
           U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502
           (1983). Rather, we require only a “probability, and
           not a prima facie showing, of criminal activity.”
           Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct.
           2317, 76 L.Ed.2d 527 (1983) (citation omitted)
           (emphasis supplied).        In determining whether
           probable cause exists, we apply a totality of the
           circumstances test. Commonwealth v. Clark, 558
           Pa. 157, 735 A.2d 1248, 1252 (1999) (relying on
           Gates, supra).

Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009).


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J-S46013-15



      In this instance, the trial court reasoned as follows.

            Based upon the totality of the circumstances in the
            instant case, th[e trial c]ourt found that Officer
            Goldschmidt      had   probable   cause     to  arrest
            [Appellant] after he observed a bag of marijuana in
            his hand. See Commonwealth v. Burnside, 625
            A.2d 678 (Pa. Super. 1993) (where experienced
            officer observed defendant standing in a brightly lit
            doorway holding a handful of “small, blue plastic
            packets” that the officer knew commonly contained
            cocaine, officer had probable cause to arrest);
            Commonwealth v. Brinkley, 620 A.2d 1226 (Pa.
            Super. 1993) (officer had probable cause to arrest
            when he observed defendant holding a bag
            containing white powder). Here, Officer Goldschmidt
            credibly testified that, based upon his training and
            experience, it was immediately apparent that
            [Appellant] possessed marijuana, which is criminal
            behavior in the Commonwealth of Pennsylvania.
            Accordingly, this [trial] court found that Officer
            Goldschmidt had the requisite probable cause
            necessary to arrest [Appellant] for this crime.

Trial Court Opinion, 11/14/14, at 6, ¶7.

      The trial court’s reasoning is supported by the record. Officer Matthew

Goldschmidt testified that he was working undercover with the anti-crime

unit, investigating drug trafficking, during the afternoon of August 28, 2012.

N.T., 1/4/13, at 19.   Officer Goldschmidt had “been receiving information

about [Appellant] regarding drug sales from the residence of 217 Ellsworth

Street.” Id. at 20. Officer Goldschmidt explained that as he was “driving

down closer to [Appellant], [I] noticed a clear plastic bag in his hand

containing marijuana. … It was in his right hand.”         Id. at 22.   Officer

Goldschmidt testified as follows.



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J-S46013-15


            It appeared to be green vegetable matter. From my
            training and experiences, it’s normally packaged in
            clear sandwich bags or clear or similar zip top
            baggies.

Id. at 23. Based on this observation, Goldschmidt effectuated the stop of

Appellant that led to Appellant’s arrest.   Id.   Given these facts, the trial

court properly determined that Goldschmidt had probable cause to arrest

Appellant. Appellant’s claim to the contrary lacks merit.

      In Appellant’s second suppression issue, he asserts that police lacked

probable cause to search his vehicle. Appellant argues that the search of his

Audi was illegal because “Officer Goldschmidt did not observe Appellant

inside the Audi, did not observe contraband inside the Audi through the

exterior, and had no prior information from an informant or anonymous

tipster that narcotics were contained within the Audi or that Appellant was

the driver, prior to unlocking the car door to establish that the key recovered

from Appellant was the door and ignition key for the Audi.” Appellant’s Brief

at 19-20.

      Our   review of the    record reveals that Appellant’s      suppression

argument with regard to the Audi is baseless. Officer Goldschmidt testified

that when he stopped Appellant, he saw Appellant discard “a black key” with

an Audi symbol. N.T., 1/4/13, at 25. Officer Goldschmidt saw an Audi “25

to 30 yards” away.    Id. at 26.    He then called for a canine officer, who

walked around the Audi and alerted Officer Goldschmidt to the presence of

narcotics. Id. at 29-30. Immediately thereafter, Officer Goldschmidt “called

for a tow truck [and] applied for a warrant.”        Id. at 30-31 (emphasis

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J-S46013-15



added).     Even more significantly, Goldschmidt determined that the Audi

“was not owned by [Appellant].” Id. at 31 (emphasis added).2

       The trial court summarily explained as follows.

              [The trial] court finds that the police did not conduct
              a warrantless search. [FN 13: The search was
              conducted after an exterior search of the vehicle and
              a search warrant was obtained.] [Also, the trial]
              court finds that [Appellant] failed to show that he
              had a privacy interest in the Audi.                 See
              Commonwealth v. Perea, 791 A.2d 427 (Pa.
              Super. 2012) (though Appellant had keys to a car,
              he did not have an expectation of privacy in that
              vehicle). In the instant case, while [Appellant] was
              observed discarding a key to the Audi, the lawful
              owner     was     Scott   Emerson      Davis.       See
              Commonwealth’s Exhibit CS-3; see also N.T.,
              1/4/13, p. 31.       [Appellant] did not provide any
              evidence that he was using the vehicle with the
              permission of the registered owner.          [Appellant]
              attempted to disassociate himself from the vehicle
              after he was approached by Officer Goldschmidt. Id.
              at 23. Therefore, the [trial] court found that he had
              no expectation of privacy in its contents. He cannot
              now claim a privacy interest in the car.

Trial Court Opinion, 11/14/14, at 6-7 (footnote 14 omitted).

       Because the facts of record support the trial court’s legal conclusions,

Appellant’s suppression issue relative to the search of the Audi is without

merit.




____________________________________________


2
 Appellant concedes that he “was not the owner of the Audi.” Appellant’s
Brief at 23.



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J-S46013-15



      With regard to Appellant’s remaining three issues, our analysis is

hampered because the certified record does not contain notes of testimony

from either Appellant’s trial or sentencing.       Moreover, our review of

Appellant’s notice of appeal filed May 1, 2014 does not indicate that

Appellant’s counsel ordered the transcripts.

      “Pennsylvania law makes clear ‘an appellate court is limited to

considering only the materials in the certified record when resolving an

issue.’” Commonwealth v. Houck, 102 A.3d 443, 456 (Pa. Super. 2014),

quoting Commonwealth v. Preston, 904 A.2d 1, 6 (Pa. Super. 2006) (en

banc), appeal denied, 916 A.2d 632 (Pa. 2007). Where the appellant has not

made the transcript of the proceedings at issue a part of the certified record,

we have held as follows.

            With regard to missing transcripts, the Rules of
            Appellate Procedure require an appellant to order
            and pay for any transcript necessary to permit
            resolution of the issues raised on appeal. Pa.R.A.P.
            1911(a) ... When the appellant ... fails to conform to
            the requirements of Rule 1911, any claims that
            cannot be resolved in the absence of the necessary
            transcript or transcripts must be deemed waived for
            the purpose of appellate review.

Id.


      We further commented as follows.

            Of course, if a party is indigent, and is entitled to
            taxpayer-provided transcripts or portions of the
            record, he will not be assessed costs. But, that does
            not absolve the appellant and his lawyer of his
            obligation to identify and order that which he deems

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J-S46013-15


            necessary to prosecute his appeal. The plain terms
            of the Rules contemplate that the parties, who are in
            the best position to know what they actually need for
            appeal, are responsible to take affirmative actions to
            secure transcripts and other parts of the record....
            [An appellant] cannot fault the trial court for his own
            failures. Instead, it is only when an appellant can
            show that a request was made and erroneously
            denied, which is not the case herein, that such a
            claim would have merit....

Id. at 456-457, citing Commonwealth v. Lesko, 15 A.3d 345, 410 (Pa.

2011). “It is not proper for … the Superior Court to order transcripts nor is it

the responsibility of the appellate courts to obtain the necessary transcripts.”

Preston, supra at 7 (citation omitted).

      Given the foregoing, we are constrained to conclude that Appellant’s

remaining issues are waived. Waiver notwithstanding, as best we are able

to discern, Appellant’s sufficiency challenge to his conviction for possession

of cocaine with the intent to deliver lacks merit.         When reviewing a

sufficiency claim we are mindful of the following.

            In analyzing [sufficiency] claims, “we must
            determine whether the evidence admitted at trial,
            and all reasonable inferences drawn therefrom, when
            viewed in a light most favorable to the
            Commonwealth as verdict winner, support the
            conviction    beyond       a    reasonable     doubt.”
            Commonwealth v. Brown, 52 A.3d 320, 323 (Pa.
            Super. 2012). Critically important, we must draw all
            reasonable inferences from the evidence in favor of
            the    Commonwealth        as    the   verdict-winner.
            Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa.
            Super. 2013). “Where there is sufficient evidence to
            enable the trier of fact to find every element of the
            crime has been established beyond a reasonable
            doubt, the sufficiency of the evidence claim must
            fail.”  Brown, supra at 323.         Of course, “the

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J-S46013-15


            evidence established at trial need not preclude every
            possibility of innocence and the fact-finder is free to
            believe all, part, or none of the evidence presented.”
            Id.

                The Commonwealth can meet its burden “by
            wholly circumstantial evidence and any doubt about
            the defendant's guilt is to be resolved by the fact
            finder unless the evidence is so weak and
            inconclusive that, as a matter of law, no probability
            of fact can be drawn from the combined
            circumstances.” Id. It is improper for this Court “to
            re-weigh the evidence and substitute our judgment
            for that of the fact-finder.” Id. Additionally, “the
            entire record must be evaluated and all evidence
            actually received must be considered.” Id.

Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super. 2013), appeal

denied, 95 A.3d 277 (Pa. 2014).

      Appellant specifically argues that there was insufficient evidence that

he “was in constructive possession of the cocaine recovered from the Audi.”

Appellant’s Brief at 22. He asserts that “Officer Goldschmidt never observed

Appellant inside of the Audi, prior to arresting Appellant, Officer Goldschmidt

had no independent source of evidence linking Appellant to the Audi.

Further, it was established that Appellant was not the owner of the Audi.

Neither was there any evidence establishing that Appellant was involved in a

cocaine distribution enterprise, as police recovered no cocaine, incident to

searches of Appellant’s person or 217 Ellsworth Avenue, where Appellant

allegedly resided.” Id. at 22-23.

      Although the facts relied upon by Appellant – from our reading of the

notes of testimony from the suppression hearing – are not entirely



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J-S46013-15



inaccurate, the trial court rebutted Appellant’s argument with the following

explanation.

                 In order to establish possession with the intent
           to deliver, the Commonwealth must prove both
           possession of a controlled substance and the intent
           to deliver that substance. 35 P.S. §780-113(a)(30).
           Possession of a controlled substance can be
           established either by a showing that the defendant
           had the substance on his person, actual possession,
           or that the defendant exercised dominion over the
           substance,           constructive         possession.
           Commonwealth v. Macolino, 503 Pa. 201, 204-06,
           469 A.2d 132, 134 (1983). Where drugs are not
           found on a defendant’s person, constructive
           possession can be established by showing that the
           defendant had the power to control and intended to
           exercise     such    control    over    the    drugs.
           Commonwealth v. Davis, 480 A.2d 1035, 1045
           (Pa. Super. 1984). The intent to control may be
           inferentially proven by the totality of the
           circumstances. Macolino, 503 Pa. at 206, 469 A.2d
           at 134.

                  When viewing the evidence in a light most
           favorable to the Commonwealth, based upon the
           totality of the circumstances, this [trial] court
           submits that there was sufficient evidence to
           establish that [Appellant] exercised a “conscious
           dominion” over the cocaine recovered from the Audi
           in this case. [Appellant] was observed discarding
           the key for the car.      Accordingly, prior to his
           encounter with the police in which he discarded this
           item, he had the ability and the power to control
           these drugs.      Based upon the totality of the
           circumstances, he also had the intent to exercise
           control over these drugs.

                 Similarly, the [trial] court submits that there
           was sufficient evidence to establish that [Appellant]
           possessed the cocaine recovered from the Audi with
           the intent to deliver it. 35 P.S. §780-113(a)(30). In

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J-S46013-15


              evaluating intent, courts examine all of the facts and
              circumstances surrounding a person’s possession of
              drugs and drug paraphernalia. Davis, 480 A.2d at
              1045.

                    In the case sub judice, [Appellant] possessed
              18.8 grams of cocaine. See Commonwealth Exhibit
              CS-2. Numerous items of drug paraphernalia were
              found throughout his residence at 217 Ellsworth
              Street, including unused packaging material and a
              bottle of inositol. In addition, $2,000 cash and a
              firearm were found in the residence. Found among
              these items was mail addressed to [Appellant].
              Officers did not locate any paraphernalia indicative of
              drug use in the residence.

Trial Court Opinion, 11/14/14, at 8-9 (footnote 15 omitted).

       Noting that the record does not contain notes of testimony from the

Appellant’s trial,3 our review of the record from the suppression hearing

supports the trial court’s factual findings and legal conclusions.      Appellant

resided at 217 Ellsworth Street with his girlfriend, Ms. Dorothea Dorsey.

N.T., 1/4/13, at 34. Ms. Dorsey gave police written consent to search the

residence. Id. at 33-34; Commonwealth Exhibit CS-1. During their search

of the residence, police found a loaded .45 caliber handgun, unused

packaging material, including zip top baggies, inositol, which is an agent

used to cut cocaine and “break it down,” and $2,000 in cash. Id. at 35-36;

Commonwealth Exhibit CS-2. The police located indicia of residency for both

Appellant and Ms. Dorsey; there was no indicia that anyone else resided in

____________________________________________


3
  The docket entries in the certified record indicate that Appellant’s trial
occurred on October 21, 2013 and November 13, 2013.



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J-S46013-15



the home. Id. at 40. That same day, when police subsequently obtained a

warrant and searched the Audi, they discovered “approximately 18.8 grams

of cocaine in a clear, knotted sandwich bag.” Id. at 37, 41. In addition, the

police search of Appellant’s person yielded $220 in cash. Id.

       In light of the foregoing, Appellant has waived his sufficiency

argument.     However, even in the absence of waiver, it appears that there

would have been sufficient evidence for the trial court to conclude that

Appellant constructively possessed the cocaine found in the Audi.

       We likewise find waiver relative to Appellant’s fourth issue, in which

Appellant claims that his conviction of possession of cocaine with the intent

to deliver was against the weight of the evidence.        After reviewing the

record, we find “waiver within waiver,” where the trial court determined that

Appellant waived this issue by failing to comply with Pennsylvania Rule of

Criminal Procedure 607.4

       Pennsylvania Rule of Criminal Procedure 607 provides that a challenge

to the weight of the evidence “shall be raised with the trial judge in a motion

for a new trial” either “orally, on the record before sentencing; by written

motion at any time before sentencing; or in a post-sentence motion.”

Pa.R.Crim.P. 607(A)(1)-(3). Again, the record before us contains only the


____________________________________________


4
  Appellant does not address the trial court’s finding of Rule 607 waiver
within his weight argument. See Appellant’s Brief at 23-24.




                                          - 15 -
J-S46013-15



notes of testimony from the January 4, 2013 suppression hearing, and

Appellant’s notice of appeal filed on May 1, 2014 does not indicate that he

ordered the notes of testimony from either his trial or sentencing. We thus

cannot determine whether Appellant orally claimed that his conviction was

against the weight of the evidence.            Further, our review of the certified

record confirms that Appellant did not raise his weight claim in a written

motion prior to sentencing, and the identical post-sentence motions, which

Appellant filed on March 5, 2014 and March 26, 2014, did not raise a weight

claim.5 Accordingly, we agree with the trial court that “review of the record

has failed to uncover a challenge to the weight of the evidence.” Trial Court

Opinion, 11/14/14, at 11.

       Finally, in his fifth issue, Appellant argues that his sentence should be

vacated because Section 7508 of the Crimes Code, which provided for

penalties based on the aggregate weight of prohibited substances possessed

by a defendant, has been held to be unconstitutional.           Although Appellant

concedes that he did not raise this issue at sentencing or in his Pa.R.A.P.

1925(b) statement, he asserts that this challenge is not waived, but is

reviewable because it invokes the legality of his sentence. We agree. See

Commonwealth v. Mosley, 114 A.3d 1072, 1088 (Pa. Super. 2014).


____________________________________________


5
  As noted by the trial court, Appellant “solely focused on the [trial] court’s
ruling on his motion to suppress.” Trial Court Opinion, 11/14/14, at 11,
n.16.



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      In his argument, Appellant cites Alleyne v. United States, 133 S.Ct.

2151 (2013).      We recognize that it was this Court in Mosley, supra at

1087-91, which Appellant does not cite, where this Court specifically held 18

Pa.C.S.A. § 7508 to be unconstitutional.         Appellant contends “at [his]

sentencing hearing, the Commonwealth presented evidence that the weight

of the cocaine recovered from Appellant totaled 18.8 grams.”         Appellant’s

Brief at 24. Although Appellant references the sentencing hearing, he fails

to cite to it – or any notes of testimony – and as discussed supra, the

sentencing transcript is not in the record. See Preston, supra at 7 (stating

“It is not proper for … the Superior Court to order transcripts nor is it the

responsibility of the appellate courts to obtain the necessary transcripts.”).

      Conversely, the Commonwealth argues that “the trial court did not

offend Alleyne because [Appellant] was not sentenced to a mandatory

minimum.”     Commonwealth Brief at 18.        The Commonwealth states that

Appellant’s “standard range was 30 to 60 months and the trial court

sentenced him in the low end of the standard range at 36 to 72 months

incarceration.”     Id. at 19.   The Commonwealth makes a single citation to

notes of testimony from March 24, 2014, which are not contained in the

certified record.    The Commonwealth also contends, without citation, that

“the trial court did not state that this was a mandatory minimum sentence

and [Appellant’s] criminal docket sheet does not reflect that it was a

mandatory minimum sentence.” Id.




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     Given the foregoing unsubstantiated assertions, and incomplete record

before us, we are impeded from conducting meaningful review of Appellant’s

fifth issue concerning his sentence. Again we reference Preston.

           This Court cannot meaningfully review claims raised on
        appeal unless we are provided with a full and complete
        certified record.     This requirement is not a mere
        ‘technicality’ nor is this a question of whether we are
        empowered to complain sua sponte of lacunae in the
        record. In the absence of an adequate certified record,
        there is no support for an appellant’s arguments and, thus,
        there is no basis on which relief could be granted.

Preston, supra at 7.

     In sum, we find Appellant’s two suppression issues to be meritless,

and we are constrained to find waiver regarding Appellant’s remaining

issues. We therefore affirm the March 24, 2014 judgment of sentence.

     Judgment of sentence affirmed.

     Judge Musmanno joins the memorandum.

     Judge Olson concurs in the result.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/4/2015




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