J-S67025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

KOREY C. HOLMES

                            Appellant                     No. 3405 EDA 2015


             Appeal from the Judgment of Sentence October 8, 2015
              In the Court of Common Pleas of Montgomery County
               Criminal Division at No(s): CP-46-CR-0009308-2012


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.                               FILED OCTOBER 12, 2016

        Appellant, Korey C. Holmes, appeals from the judgment of sentence of

sixteen to eighty-four months’ imprisonment and one year of probation,

imposed after his conviction for possession of cocaine with intent to deliver,

simple possession of cocaine, and possessing drug paraphernalia.1               We

affirm.

          The facts elicited at the trial in this case showed the following: Police

entered Appellant’s home December 5, 2012, to serve legal process in a

matter unrelated to the instant case.          There, officers discovered Appellant

smoking a marijuana cigarette in the company of three other men, and other

evidence of drug activity. A search of the premises and Appellant’s person

____________________________________________


1
    35 P.S. § 113(a)(30), 35 P.S. § 780-113(a)(16), 35 P.S. § 780(a)(32).


*
    Former Justice specially assigned to the Superior Court.
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resulted in the recovery of one marijuana cigarette, $90 in cash in

Appellant’s right pants pocket, twenty-nine blue-tinted bags of crack cocaine

within a larger plastic bag in his left pants pocket, and a digital scale.

      At trial, the Commonwealth introduced the expert testimony of

Detective James Wood, who opined that, based on the evidence and his

experience and training, Appellant possessed the cocaine with intent to

deliver. Detective Wood based his opinion on the following factors: 1) the

scale recovered at the scene was the type typically used by drug dealers in

measuring illegal drugs for packaging and individual sale; 2) the bags were

of a type typically used by drug dealers for individual resale; 3) the amount

of cocaine contained within each packet was an amount typically used by

drug dealers in individual resale; 4) the number of individual packages

recovered was higher than a typical user would possess for personal use; 5)

the packets recovered could be sold individually for a significant profit over

the cost of making a bulk purchase of that total amount of cocaine; 6) from

Wood’s personal observation, Appellant did not exhibit typical physical

characteristics of a cocaine user; 7) no paraphernalia associated with

cocaine users was discovered at the scene; and 8) the amount of currency

discovered on Appellant’s person was consistent with the sale of cocaine.

Trial Court Opinion (TCO), 1/5/16, at 6-7 (internal citations to the record

omitted), see also Notes of Testimony (N. T.), 6/20/13, at 47-62.

      On June 20, 2013, following trial, a jury convicted Appellant of the

above-enumerated offenses.        On July 9, 2013, the Commonwealth filed

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notice of its intention to seek a mandatory minimum sentence pursuant to

18 Pa.C.S. § 7508. On September 3, 2013, the sentencing court imposed

the mandatory minimum sentence and sentenced Appellant to three to

seven years’ imprisonment on the possession with intent to deliver

conviction, and a concurrent one-year probationary sentence for possession

of drug paraphernalia.2          Appellant timely filed a post-sentence motion

challenging the weight of the evidence; however, the motion was docketed

in error by the Montgomery County Clerk of Courts and was not forwarded to

the sentencing court.         Subsequently, Appellant’s counsel discovered the

error and on January 27, 2014, filed a motion for reinstatement of the post-

sentence motion nunc pro tunc, which the court granted January 29, 2014.

       On April 3, 2014, Appellant filed a supplemental post-sentence motion

contending the mandatory minimum sentence imposed was illegal pursuant

to Alleyne v. United States, 133 S. Ct. 2151 (2013), which had been

decided two days prior to Appellant’s trial. The court determined Appellant

had not established a right to relief on the weight of the evidence claim, but

that the mandatory minimum sentence was illegal.         On June 5, 2014, the

court denied Appellant’s post-sentence weight claim and granted Appellant’s

Alleyne claim, vacated his sentence, and scheduled the matter for

resentencing. On July 7, 2014, the Commonwealth timely appealed directly

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2
  The sentence for simple possession merged, for sentencing purposes, with
that of the possession with intent to deliver.



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to the Supreme Court of Pennsylvania, which affirmed the trial court on

August 31, 2015.     Commonwealth v. Holmes, 121 A.3d 987 (Pa. 2015)

(unpublished memorandum).

      On October 8, 2015, the sentencing court imposed a standard range

sentence of sixteen to eighty-four months’ imprisonment for possession with

intent to deliver, and one year of probation on the conviction for possession

of drug paraphernalia. Appellant timely appealed pro se and filed a court-

ordered Pa.R.A.P. 1925(b) statement.       The trial court issued a responsive

opinion on January 5, 2016.

      Appellant presents a single issue for our review, namely:

      Whether the trial court erred in denying Appellant Holmes’ post
      sentence motion for a new trial based on the weight of the
      evidence where defendant’s conviction for possession with intent
      to deliver was manifestly against the weight of the evidence
      insofar as the only evidence regarding the Appellant’s intent to
      deliver was the testimony of Detective James Woods, which
      opinion was unreliable, insofar as it was self-contradicting, highly
      speculative, and based on facts not in evidence, as stated more
      fully in said motion.

Appellant’s Brief, at 4.

      The law regarding weight of the evidence claims is well-settled.

      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; 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

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      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, 1135-1136 (Pa. 2011) (citations

and internal quotation marks omitted).

      Appellant contends that the jury’s verdict was against the weight of

the evidence. In so doing, Appellant attacked the credibility and reliability of

Detective Wood’s testimony and opinion, as well as the credibility and

reliability of the forensic chemistry expert’s testimony. In such cases,

      “[w]hen the challenge to the weight of the evidence is predicated
      on the credibility of trial testimony, our review of the trial court's
      decision is extremely limited. Generally, unless the evidence is
      so unreliable and/or contradictory as to make any verdict based
      thereon pure conjecture, these types of claims are not
      cognizable on appellate review.”

Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa. Super. 2007), quoting

Commonwealth v. Rossetti, 863 A.2d 1185, 1191 (Pa. Super. 2004)

(citation omitted); see also Commonwealth v. Hankerson, 118 A.3d 415,

420 (Pa. Super. 2015) (noting that this Court may not re-assess the

credibility of a witness’ testimony when ruling on a weight of the evidence

claim).

      As noted by the trial court, Detective Wood’s testimony and opinion

were based on facts in the record, his extensive experience and training in

the field of illegal narcotics trafficking, and his personal participation in more

than 1,000 drug investigations and arrests. See TCO at 6. It was the jury’s

role to evaluate this testimony and give it such weight as they saw fit, and


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they properly found that there was nothing inherently unreliable or

impermissibly speculative in Detective Wood’s testimony. See TCO, at 6-8.

Thus, the jury heard the evidence, evaluated it, and found Detective Wood’s

testimony credible, and we decline to re-assess the jury’s credibility

determination. See Hankerson, 118 A.3d at 420.

       Moreover, Appellant vigorously challenged the testimony of both

Detective Wood and the Commonwealth’s forensic expert during cross-

examination before the jury, covering many of the issues he now raises on

appeal.3    The jury, in their role as fact-finder, has heard, considered, and

subsequently rejected Appellant’s arguments. Thus, Appellant’s claim is

without merit.

       This Court discerns no abuse of discretion in the trial court’s decision

to deny Appellant’s post-sentence motion and, based upon the above, the

verdict was not so contrary to the evidence as to shock one’s sense of

justice. See Houser, 18 A.3d at 1135-1136.

       Order affirmed.




____________________________________________


3
 See N. T., 6/20/13, at 26, 29, 32-33, 36-37, 57, 59, 62-90; see also N. T.
6/20/13, at 15-35, 38-39.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/12/2016




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