J-S64024-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellee

                    v.

ALLEN JEROME WILLIAMS,

                         Appellant                     No. 487 WDA 2014


      Appeal from the Judgment of Sentence Entered March 10, 2014
             In the Court of Common Pleas of Fayette County
           Criminal Division at No(s): CP-26-CR-0001648-2013


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J.

MEMORANDUM BY BENDER, P.J.E.:                      FILED OCTOBER 15, 2014

      Appellant, Allen Jerome Williams, appeals from the judgment of

sentence of 30 to 84 months’ imprisonment.            Appellant challenges the

sufficiency of the evidence introduced at his trial, and the trial court’s failure

to grant a mistrial following the admission of a photograph into evidence.

After careful review, we affirm.

      Appellant proceeded to a jury trial on March 3, 2014.            The facts

adduced at trial were as follows:

      On May 11th of 2011, Detective Donald Cross along with a
      confidential informant … (Informant), travelled to 41 Cycle
      Street in Uniontown. Upon arrival, Detective Cross obtained the
      registration from a Honda Civic parked outside. Upon entering
      the residence, Detective Cross and the Informant were greeted
      by a man Detective Cross identified as [Appellant]. Detective
      Cross and the Informant indicated to [Appellant] a desire to
      purchase heroin and [Appellant] instructed the two to go to the
      Rite Aid parking lot.
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            While waiting in the Rite Aid parking lot, the Informant
      received a call. At the conclusion of the call, the Informant
      drove the car to the parking lot of the Atlantic Broadband
      building on Bailey Avenue. Detective Cross noticed the same
      Honda Civic parked in the lot and instructed the Informant to
      park to the right of the Honda. Detective Cross handed $350 to
      the Informant, who then exited the vehicle and walked into the
      lot. Detective Cross testified that [Appellant] exited the building
      and met with the Informant 10 feet from the vehicle in which the
      detective was sitting.     Detective Cross testified that, while
      outside the building, he observed the Informant hand the
      money to [Appellant], and [Appellant] hand the Informant a
      plastic bag containing 50 rolled items.

            At trial, parties stipulated that the package did contain
      heroin, a Schedule 1 controlled substance. Detective Cross
      stated that he had an unobstructed view of the transaction
      and the package had remained in his sight from the time of
      the transaction to the time he received the package from the
      Informant. The Informant and his vehicle were searched
      before and after the operation for drugs, money, or other
      contraband; both searches determined that there were no
      such items present.

Trial Court Opinion (TCO), 6/27/14, at 2 – 3 (citations to the record

omitted). At the conclusion of Appellant’s trial, the jury found him guilty of

delivery of heroin. On March 10, 2014, Appellant was sentenced to 30 to 84

months’ imprisonment. He filed a timely notice of appeal, as well as a timely

concise statement of errors complained of on appeal pursuant to Pa.R.A.P

1925(b).

      Appellant now presents the following questions for our review:

           1. Did the Commonwealth fail to provide sufficient evidence
              on the charges of delivery, intent to deliver and possession




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              of a controlled substance,[1] that the officer would not have
              been able to observe Appellant deliver the drugs inside of
              the building?

          2. Did the trial court err when it permitted the introduction of
             evidence, i.e., a JNET photograph, that had never been
             provided to defense counsel during discovery?

Appellant’s brief at 7 (unnecessary capitalization omitted).

       Appellant first argues that the evidence was insufficient to establish

that he delivered the heroin in question.        Our standard of review of such

claims is well-settled:

       A claim challenging the sufficiency of the evidence is a question
       of law. Evidence will be deemed sufficient to support the verdict
       when it establishes each material element of the crime charged
       and the commission thereof by the accused, beyond a
       reasonable doubt . . . . When reviewing the sufficiency claim the
       court is required to view the evidence in the light most favorable
       to the verdict winner giving the prosecution the benefit of all
       reasonable inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (citations

omitted).

       Appellant was convicted of delivery of heroin, defined at 35 Pa. C. S. §

780-113(a)(30):

       (a)    The following acts and the causing thereof within the
              Commonwealth are hereby prohibited.
              …


____________________________________________


1
  For the sake of clarity, we note that Appellant was charged with, and
convicted of, one count; that count was delivery of heroin. Appellant’s
apparent references here to convictions for possession and possession with
intent to deliver appear to be in error.



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             (30)    Except as authorized by this act, the
                     manufacture, delivery, or possession with
                     intent to manufacture or deliver, a controlled
                     substance by a person not registered under
                     this act, or a practitioner not registered or
                     licensed by the appropriate State board, or
                     knowingly creating, delivering or possessing
                     with intent to deliver, a counterfeit controlled
                     substance.

       Here, Detective Cross testified that he watched a confidential

informant give $350 to Appellant.              Detective Cross then watched as

Appellant handed the confidential informant a plastic bag containing rolled

items. At trial, Appellant stipulated that the bag contained heroin. As such,

the evidence was sufficient to establish that Appellant delivered heroin.2
____________________________________________


2
   Appellant’s briefed argument regarding this issue ends abruptly after the
first page; as such, his precise challenge to the sufficiency of the evidence is
unclear.

       We note, however, that Appellant claims: “any contact between
[Appellant] and the confidential informant occurred that day inside the
building.” Appellant’s brief at 9. Moreover, Appellant asserts that “the
officer would not have been able to observe the Appellant deliver the drugs
inside of the building.” Appellant’s brief at 7. As noted supra, Detective
Cross’s uncontroverted testimony at trial was that he watched the
transaction occur, and it occurred outside the building. There is nothing in
the record to suggest that the transaction occurred outside of the detective’s
observation.

       Appellant did not include citations to authority in his brief’s “Scope and
Standard of Review.”        We will reiterate that our scope of review of
sufficiency claims on direct appeal is limited to the record before us, and all
reasonable inferences therefrom, taken in the light most favorable to the
Commonwealth. Widmer, 744 A.2d at 751.

      To the extent that Appellant challenges the credibility of the
detective’s testimony, this would constitute a challenge to the weight of the
(Footnote Continued Next Page)


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        Next, Appellant claims that the trial court erred in permitting the

Commonwealth to introduce a photograph of Appellant into evidence,

because that photograph had not been turned over to Appellant in discovery.

        Appellant relies on Pa. R. Crim. P. 573(B), which states in applicable

part:

        (1)   In all court cases, on request by the defendant … the
              Commonwealth shall disclose to the defendant's attorney
              all of the following requested items or information,
              provided they are material to the instant case. The
              Commonwealth shall, when applicable, permit the
              defendant's attorney to inspect and copy or photograph
              such items.

              …

           (f) [A]ny tangible objects, including … photographs[.]

        As noted by counsel for the Commonwealth at trial,

        [o]n page 3 of the police report, at paragraph number 11, there
        is an indication that the detective previously viewed [Appellant’s]
        identity from the JNET photo history. So this issue of JNET was
        not hidden in any way, it was contained in the police report and
        the police report was part of the discovery.



                       _______________________
(Footnote Continued)

evidence. See Commonwealth v. Wilson, 825 A.2d 710, 713-714 (Pa.
Super. 2003) (“A sufficiency of the evidence review … does not include an
assessment of the credibility of the testimony offered by the Commonwealth.
Such a claim is more properly characterized as a weight of the evidence
challenge.”) (internal citations omitted). Appellant has not preserved a
challenge to the weight of the evidence; as such, we will not address it on
appeal. See Pa. R. Crim. P. 607(a) (“A claim that the verdict was against
the weight of the evidence shall be raised with the trial judge in a motion for
a new trial”).



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N.T., 3/3/14, at 35. Moreover, counsel for the Commonwealth argued that

the defense would have been able to inspect and copy that picture, had they

arranged to do so. Id. at 35 – 36. Appellant’s counsel did not claim that he

ever tried to make such arrangements; rather, his sole argument was that

the photograph was not provided in the discovery packet the Commonwealth

had provided him. Id. at 36.

       Our review of the record shows that the Commonwealth disclosed the

existence of the JNET photograph to Appellant.             Moreover, Appellant

concedes he did not attempt to inspect the photograph. Appellant argues:

       The failure to provide the JNET photograph to counsel for the
       defense [sic] stated that the admission of the undisclosed photo
       would negatively impact his trial strategy. Timely disclosure of
       the photo would have changed the strategy of counsel. Counsel
       stated that "I would, therefore, ask him about it and it goes
       basically to his word as opposed to having some physical
       evidence that he viewed a document, an official document, with
       Mr. Williams[’] name on it, and it changed the whole strategy of
       the case since it was not provided to me. Because then I can
       argue, if that is a correct identification, why didn't he bring, why
       wasn't the JNET photo provided to me...." (N.T. pg. 36).

Appellant’s brief at 12 – 13. It appears that the fact that the photograph

was not included in the discovery packet led the defense to incorrectly

assume the photograph did not exist.             Rather than investigate the

whereabouts     of   photograph,   Appellant’s   counsel   decided   to   impeach

Detective Cross on the basis of this incorrect assumption. This strategy was

thwarted when the Commonwealth introduced the photograph into evidence

at trial.



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      Accordingly, Appellant did not establish that Pa. R. Crim. P. 573 was

violated, and we conclude the trial court did not err in denying Appellant’s

motion for a mistrial on this basis.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2014




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