J-S02006-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JACOB MARTIN CASSELL, JR.                :
                                          :
                    Appellant             :   No. 470 MDA 2019

       Appeal from the Judgment of Sentence Entered March 7, 2019
     In the Court of Common Pleas of Perry County Criminal Division at
                      No(s): CP-50-CR-0000162-2018


BEFORE: BENDER, P.J.E., KING, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                        FILED MARCH 11, 2020

      Jacob Martin Cassell, Jr., appeals from the judgment of sentence of an

aggregate term of 8½ to 17 years’ incarceration, imposed after he was

convicted by a jury of several firearm offenses. Appellant solely challenges

the weight of the evidence to support his convictions. We affirm.

      At Appellant’s trial on January 28, 2019, Pennsylvania State Trooper

William Dubbs testified that on February 7, 2017, he received information from

a confidential informant (CI) that Appellant had a handgun he wanted to sell.

N.T. Trial, 1/28/19, at 20, 22. In the presence of the trooper, the CI contacted

Appellant, who agreed to sell the gun for $100. Id. at 23. Appellant directed

the CI to park at the bottom of “a long driveway” on Sugar Run Road, and to

wait there for Appellant. Id. After searching the CI for contraband, Trooper

Dubbs drove the CI in an unmarked police vehicle to that location. Id. at 22-

23, 24. They arrived at approximately 2:45 p.m. Id. at 24.
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      Trooper Dubbs testified that he observed Appellant for approximately “a

minute or so” as Appellant walked down the driveway toward the trooper’s

vehicle. Id. at 25. Appellant got into the back seat of the car and after the

CI handed Appellant $100, Appellant gave the trooper “a gray T-shirt,” and

“said the gun was inside.” Id. Appellant explained that he had “wiped [the

gun] clean” because “[h]e didn’t want his fingerprints on it.”      Id. at 26.

Trooper Dubbs unwrapped the shirt and confirmed that a handgun was inside.

Id.   Appellant then “exited [the trooper’s] car and … walked up the dirt

driveway that he had just walked down.” Id. Trooper Dubbs testified that in

total, Appellant was inside his vehicle for “[t]wo to three minutes.” Id. The

trooper identified Appellant in court as the person who sold the gun on

February 7, 2017. Id. at 28.

      Appellant testified on his own behalf at trial. He denied selling the gun

to Trooper Dubbs, claiming that he was with his grandparents and niece at his

grandparents’ house at the time of the sale. Id. at 58-59. He did not present

any other witness(es) to corroborate his testimony.

      At the close of trial, the jury convicted Appellant of possession of a

firearm with an altered or manufactured serial number, 18 Pa.C.S. §

6110.2(a); possession of a firearm by a person prohibited, 18 Pa.C.S. §

6105(a)(1); carrying a firearm without a license, 18 Pa.C.S. § 6106(a)(1);

and unlawful sale or transfer of a firearm, 18 Pa.C.S. § 6111(g)(1). On March

7, 2019, the court sentenced Appellant to the aggregate term stated supra.

He filed a timely notice of appeal, and he also complied with the trial court’s

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order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. The court filed its Rule 1925(a) opinion on August 30, 2019. Herein,

Appellant states the following issue for our review: “Did the trial court properly

exercise its discretion in reviewing the challenge to the weight of the

evidence[?]” Appellant’s Brief at 2.

      Initially, to properly preserve a challenge to the weight of the evidence,

the appellant must raise that claim before the trial court. See Pa.R.Crim.P.

607(A) (stating that a claim that verdict was against weight of evidence must

be raised before trial court orally or in a written motion prior to sentencing, or

in a post-sentence motion). Presently, Appellant did not file a post-sentence

motion raising his weight issue, and he fails to point to where in the record he

preserved it prior to sentencing. See Pa.R.A.P. 2119(e) (directing that the

appellant must set forth in the argument portion of his brief where in the

record he preserved the issue before the trial court).            Consequently,

Appellant’s issue is waived. See Commonwealth v. Griffin, 65 A.3d 932,

938 (Pa. Super. 2013) (finding a weight-of-the-evidence claim waived where

the appellant failed to raise it in a pre-sentence motion, did not address the

issue orally prior to sentencing, and did not raise it in a post-sentence motion).

      Notwithstanding waiver, Appellant’s cursory argument would fail to

convince us that the court erred in rejecting his challenge to the weight of the

evidence.

      A claim alleging the verdict was against the weight of the evidence
      is addressed to the discretion of the trial court. Accordingly, an
      appellate court reviews the exercise of the trial court’s discretion;

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     it does not answer for itself whether the verdict was against the
     weight of the evidence. It is well[-]settled that the jury is free to
     believe all, part, or none of the evidence and to determine the
     credibility of the witnesses, and a new trial based on a weight of
     the evidence claim is only warranted where the jury’s verdict is so
     contrary to the evidence that it shocks one’s sense of justice. In
     determining whether this standard has been met, appellate review
     is limited to whether the trial judge’s discretion was properly
     exercised, and relief will only be granted where the facts and
     inferences of record disclose a palpable abuse of discretion.

Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations

and internal quotation marks omitted).

     Here, the trial court found that the jury’s verdict did not shock its

conscience. See Trial Court Opinion, 8/30/19, at 2 (unnumbered). The court

noted that Trooper Dubbs had testified that he was present during the sale of

the gun, and he identified Appellant as the person who sold it. Id. at 1-2.

While Appellant denied selling the weapon, the jury was free to believe the

trooper’s testimony rather than Appellant’s.    Id.   Thus, the court rejected

Appellant’s weight-of-the-evidence claim.

     In challenging the court’s decision on appeal, Appellant contends:

     [W]hat we have here is essentially a tie vote. One side says
     “yea[,”] the other “nay.” The jury essentially choss [sic] one over
     the other and the [trial court] said the choice is not crazy. But
     that does not make it right. It may produce finality and certainty,
     but not justice.

Appellant’s Brief at 6. Appellant’s cursory and legally unsupported argument

does not demonstrate that the trial court abused its discretion in concluding

that the jury’s verdict was not shocking to its conscience. Therefore, even

had Appellant preserved his issue for our review, we would deem it meritless.



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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/11/2020




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