J-S50022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TYSON JAMES BARRON                         :
                                               :
                       Appellant               :   No. 158 WDA 2019

          Appeal from the Judgment of Sentence Entered May 30, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0004799-2017


BEFORE:      LAZARUS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.:                          FILED SEPTEMBER 20, 2019

        Tyson James Barron (Appellant) appeals from the judgment of sentence

imposed after a jury found him guilty of delivery of heroin, possession of

heroin with the intent to deliver (PWID), and possession of heroin.1 Upon

review, we affirm.

        The trial court recounted the evidence presented at trial as follows:

        [O]n January 19, 2017, Detective Timothy Capp of the Allegheny
        County Police Department was conducting surveillance on
        [Appellant]. Detective Capp followed a red pickup truck driven by
        [Appellant] around areas of the City of Pittsburgh. [Appellant]
        was the sole occupant of the pickup truck. At approximately 4:00
        p.m., Detective Capp observed the red pickup truck pull into an
        alley onto H Way.      Robert Steiner, an individual known to
        Detective Capp, then approached the driver’s side of [Appellant’s]
        vehicle. Mr. Steiner had come out from behind a house on H Way.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   35 P.S. §§ 780-113(a)(30), 780-113(a)(30), and 780-113(a)(16).
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       Detective Capp had stopped his vehicle behind [Appellant’s
       pickup] truck, approximately ten yards away. [Appellant] reached
       his hand out of the driver’s side window and dropped white stamp
       bags into Mr. Steiner’s hand. Steiner then handed an unknown
       amount of currency to [Appellant]. The transaction occurred
       during daylight hours and Detective Capp clearly observed the
       transaction.

              Mr. Steiner testified that he purchased heroin from
       [Appellant] on January 19, 2017.           He explained that he
       approached [Appellant’s] vehicle on H Way and obtained heroin
       for cash.    He testified that he had sent text messages to
       [Appellant] to set up the meeting.         Mr. Steiner specifically
       identified [Appellant] at trial and he indicated that he had been
       purchasing heroin from [Appellant] two to three times per week
       over a four to six month period. Immediately after he engaged in
       the heroin transaction with [Appellant], Mr. Steiner was arrested
       by Detective Jason Mikelonis and the heroin he obtained was
       seized. The substance seized was, in fact, heroin, as evidenced
       by the parties’ stipulation to the laboratory report confirming this
       fact. Based on this evidence, [Appellant] was convicted as set
       forth above.

Trial Court Opinion, 6/25/19, at 2-3.

       On May 30, 2018, the trial court sentenced Appellant for delivery of

heroin to 22 to 44 months of incarceration, followed by 5 years of probation.2

       On July 18, 2018, Appellant sent a pro se letter to the trial court asking

whether trial counsel, Randall H. McKinney, had filed a notice of appeal. On

August 6, 2018, Attorney McKinney filed a motion to withdraw. On September

4, 2018, the trial court entered an order granting Mr. McKinney’s motion, and

____________________________________________


2 The trial court merged Appellant’s PWID and possession convictions with his
delivery of heroin conviction for sentencing purposes. Trial Court Opinion,
6/25/19, at 1; see also 42 Pa.C.S.A. § 9765 (“Where crimes merge for
sentencing purposes, the court may sentence the defendant only on the higher
graded offense.”).


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appointing Scott Coffey, Esquire to represent Appellant in seeking post-

conviction relief. After conducting a hearing on January 15, 2019, the trial

court entered an order reinstating Appellant’s post-sentence and appeal

rights.

      Appellant filed a post-sentence motion on January 22, 2019, in which

he raised weight and sentencing claims, and which the trial court denied the

same day.   Appellant filed a notice of appeal on January 31, 2019.    Both

Appellant and the trial court have complied with Pennsylvania Rule of

Appellate Procedure 1925.

      Appellant presents the following issues on appeal:

      1. DID THE TRIAL COURT ERR IN DENYING APPELLANT’S POST
      SENTENCING MOTIONS SINCE THE TRIAL COURT ABUSED ITS
      DISCRETION IN SENTENCING APPELLANT TO AN AGGRAVATED
      RANGE SENTENCE OF 22-44 MONTHS’ INCARCERATION, PLUS 5
      YEARS’ CONSECUTIVE PROBATION, FOR DELIVERY OF HEROIN,
      WHICH WAS MANIFESTLY EXCESSIVE SINCE AN AGGRAVATED
      RANGE SENTENCE WAS UNWARRANTED, AS WAS THE
      CONSECUTIVE 5 YEARS’ PROBATION, ESPECIALLY SINCE THE
      COMMONWEALTH HAD OFFERED APPELLANT, AT THE PRETRIAL
      STAGE, TO WITHDRAWAL OF THE DELIVERY CHARGE, A PLEA TO
      POSSESSION, AND 12 MONTHS’ PROBATION AND NO JAIL TIME
      AT THE INSTANT CASE?

      2. DID THE TRIAL COURT ERR IN DENYING APPELLANT’S POST
      SENTENCING MOTIONS SINCE APPELLANT’S JURY TRIAL
      CONVICTIONS OF DELIVERY OF HEROIN, POSSESSION WITH
      INTENT TO DELIVER HEROIN AND POSSESSION OF HEROIN WERE
      AGAINST THE WEIGHT OF THE EVIDENCE SINCE THE
      CONVICTIONS RESTED SOLELY UPON THE INCREDIBLE
      TESTIMONY OF DETECTIVE TIMOTHY CAPP, WHO TESTIFIED
      THAT HE OBSERVED A DRUG TRANSACTION ON 1/19/17
      BETWEEN APPELLANT AND HEROIN ADDICT ROBERT STEINER
      FROM A DISTANCE OF 30 FEET WHILE OPERATING A MOVING
      VEHICLE, AND THE UNRELIABLE AND UNTRUSTWORTHY

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      TESTIMONY OF HEROIN ADDICT ROBERT STEINER, WHO
      RECEIVED A FAVORABLE PLEA DEAL FOR ONLY PROBATION FOR
      POSSESSION [OF] 8 STAMP BAGS OF HEROIN WHEN CAUGHT ON
      1/19/17, AND THE PLEA DEAL WAS PRESUMABLY CONTIGENT
      UPON STEINER’S TESTIMONY AGAINST APPELLANT?

Appellant’s Brief at 3.

      In his first issue, Appellant challenges the discretionary aspects of his

sentence.   “The right to appellate review of the discretionary aspects of a

sentence is not absolute, and must be considered a petition for permission to

appeal.” Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super.

2014).   “An appellant must satisfy a four-part test to invoke this Court’s

jurisdiction when challenging the discretionary aspects of a sentence.” Id.

We conduct this four-part test to determine whether:

      (1) the appellant preserved the issue either by raising it at the
      time of sentencing or in a post[-]sentence motion; (2) the
      appellant filed a timely notice of appeal; (3) the appellant set forth
      a concise statement of reasons relied upon for the allowance of
      appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises
      a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted). “A defendant presents a substantial question when he sets forth a

plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process.”

Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citations

omitted).

      Appellant has complied with the first three prongs of this test by raising

his discretionary sentencing claim in a post-sentence motion, filing a timely


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notice of appeal, and including in his brief a Rule 2119(f) concise statement.

See Appellant’s Brief at 9-11. Additionally, Appellant has raised a substantial

question by asserting that the trial court erred in imposing his sentence “as

additional punishment for [Appellant] proceeding to a jury trial rather than

accepting the Commonwealth’s plea offer.” Id. at 10, 17; Commonwealth

v. Barnes, 167 A.3d 110, 123 (Pa. Super. 2017) (en banc) (a claim alleging

judicial vindictiveness constitutes a substantial question for appellate review)

(citation omitted).

      We review Appellant’s sentencing claim mindful of the following:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge. The standard employed when reviewing the
      discretionary aspects of sentencing is very narrow. We may
      reverse only if the sentencing court abused its discretion or
      committed an error of law. A sentence will not be disturbed on
      appeal absent a manifest abuse of discretion. In this context, an
      abuse of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,
      that the sentencing court ignored or misapplied the law, exercised
      its judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision. We must accord
      the sentencing court’s decision great weight because it was in the
      best position to review the defendant’s character, defiance or
      indifference, and the overall effect and nature of the crime.

Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (citations

omitted).

      The Pennsylvania Sentencing Code directs that when a trial court

imposes an aggravated range sentence, “it shall state the reasons on the

record.” 204 Pa. Code § 303.13. Section 9721 also provides: “[I]n every

case the court imposes a sentence for a felony or misdemeanor . . . the court


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shall make as a part of the record, and disclose in open court at the time of

sentencing, a statement of the reason or reasons for the sentence imposed.”

42 Pa.C.S.A. § 9721. We have explained:

      The [trial] court is not required to parrot the      words of the
      Sentencing Code, stating every factor that must     be considered
      under Section 9721(b). However, the record as       a whole must
      reflect due consideration by the court of           the statutory
      considerations enunciated in that section.

Commonwealth v. Coulverson, 34 A.3d 135, 145-46 (Pa. Super. 2011)

(citations omitted).   Further, “[w]hen a sentencing court has reviewed a

presentence investigation report, we presume that the court properly

considered and weighed all relevant factors in fashioning the defendant’s

sentence.” Baker, 72 A.3d at 663, citing Commonwealth v. Fowler, 893

A.2d 758, 767 (Pa. Super. 2006). We stated:

      [i]n imposing sentence, the trial court is required to consider the
      particular circumstances of the offense and the character of the
      defendant. The trial court should refer to the defendant’s prior
      criminal record, age, personal characteristics, and potential for
      rehabilitation. However, where the sentencing judge had the
      benefit of a presentence investigation report, it will be presumed
      that he or she was aware of the relevant information regarding
      the defendant’s character and weighed those considerations along
      with mitigating statutory factors. Additionally, the sentencing
      court must state its reasons for the sentence on the record. 42
      Pa.C.S.A. § 9721(b). The sentencing judge can satisfy the
      requirement that reasons for imposing sentence be placed on the
      record by indicating that he or she has been informed by the pre-
      sentencing report; thus properly considering and weighing all
      relevant factors.

Fowler, 893 A.2d at 767-68, citing Commonwealth v. Boyer, 856 A.2d 149,

154 (Pa. Super. 2004) (citations omitted) (emphasis added).



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      Here,   Appellant   does   not   expand    upon    his   claim   of   judicial

vindictiveness, stating simply that his aggravated sentence “could be

interpreted as being imposed as additional punishment for [Appellant]

proceeding to a jury trial rather than accepting the Commonwealth’s pretrial

plea offer.” Appellant’s Brief at 17. Further, the record reveals no support for

Appellant’s contention that the trial court imposed an aggravated range

sentence because Appellant refused the Commonwealth’s plea offer.

      At sentencing, the trial court stated that it had reviewed Appellant’s pre-

sentence investigation report, “in its entirety.” N.T., 5/30/18, at 3. Also, prior

to imposing Appellant’s sentence, the trial court discussed Appellant’s age,

criminal record, personal characteristics, remorsefulness, and the effects of

his crimes on the community. See id. at 7, 11, 13-14. Ultimately, the court

summarized:

      The record in this case supports the sentence imposed by this
      [c]ourt.    The sentencing record reflects that this [c]ourt
      considered the presentence report, the testimony of [Appellant],
      the comments presented at the sentencing hearing and the
      testimony at the jury trial. [Appellant] did not object to the
      substance of the information contained in the presentence report.
      As specifically explained on the record at sentencing, this [c]ourt
      imposed a sentence at the aggravated range because [Appellant]
      has demonstrated a complete inability to conform his conduct to
      the law. [Appellant] had been previously convicted in federal
      court of drug dealing. [Appellant] was on parole at the time of
      the instant offense as a result of a previous drug-dealing
      conviction before this [c]ourt.       The instant offense was
      [Appellant’s] third felony drug conviction. In this [c]ourt’s view,
      [Appellant’s] conduct reflected his own conscious decision to
      obtain heroin and then sell the heroin on the streets, while being
      on parole for similar conduct. [Appellant] has demonstrated an
      utter lack of respect for the law and, in this [c]ourt’s view, he

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      continued to “peddle poison” and be an active participant in the
      opioid epidemic that is causing substantial harm to many
      members of our community. The circumstances of the offense of
      conviction and [Appellant’s] background, as summarized at
      sentencing and in the presentence report, warranted the
      individual sentence imposed by this [c]ourt.

Trial Court Opinion, 6/25/19, at 5.

      Upon review of the record, particularly the notes of testimony from the

sentencing hearing, we see no error. The trial court addressed the following

comments to Appellant at sentencing:

              I can't keep taking the chance on behalf of this
      community that you will go out there and do it again and again
      and again. Everybody stands here remorseful in front of the
      Judge, and they are. I’m not saying you’re not. But then they
      go out there and they get their street sense all over again . . .
      I don’t know what it is. But all of a sudden they are back . . .
      right back in the groove. You’re that guy. Nobody says you’re
      a monster. I don’t think you are. I think you’re a smart guy,
      a guy who was brought up well who’s making conscious
      decisions to be a criminal because he wants the money. That’s
      what I think and your history proves that. You did two to six
      years. You did a federal stint. You think that would persuade
      somebody of good sense that’s a bad idea. Not you, you want
      to live the life, you got to pay the price, there is no way around
      it. . . . Think of all the people that could have died. That’s the
      risk you took over and over by dealing in this heroin. More
      people die every year because of this heroin. You have to know
      that, you’ve been in the business for years and there you are
      dealing again. I can’t keep letting you take that risk. That’s all
      there is to it. I can’t.

N.T., 5/30/18, at 13-15.

      Consistent with the foregoing, there is no merit to Appellant’s claim

that the trial court abused its discretion in imposing Appellant’s sentence.



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       Next, Appellant asserts that the verdicts were against the weight of the

evidence.    This claim was properly preserved.3      We therefore turn to the

merits, and our established standard of review:

       When 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. Moreover, where the trial court has ruled on
       the weight claim below, an appellate court’s role is not to consider
       the underlying question of whether the verdict is against the
       weight of the evidence. Rather, appellate review is limited to
       whether the trial court palpably abused its discretion in ruling on
       the weight claim.

Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (citations

omitted). “[I]t is for the fact-finder to make credibility determinations, and

the finder of fact may believe all, part, or none of a witness’s testimony.” Id.

(citation omitted).      Therefore, “[a]n appellate court will give the gravest

consideration to the findings and reasons advanced by the trial judge when

reviewing a trial court’s determination that the verdict is against the weight of

the evidence, as the trial judge is in the best positon to view the evidence

presented.” Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa. Super.

2006) (citation omitted). To allow an appellant “to prevail on a challenge to

the weight of the evidence, the evidence must be so tenuous, vague and


____________________________________________


3In compliance with Pennsylvania Rule of Criminal Procedure 607, Appellant
preserved his weight of the evidence claim by raising it with the trial court in
a post-sentence motion for a new trial. Appellant’s Post-Sentence Motion,
1/22/19, at 3.

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uncertain    that    the    verdict    shocks      the   conscience   of   the   court.”

Commonwealth v. Talbert, 129 A.3d 536, 545 (Pa. Super. 2016) (citation

omitted).

       The jury convicted Appellant of delivery of heroin, PWID, and possession

of heroin.4 Both delivery of heroin and PWID are criminalized by 35 P.S. §

780-113(a)(30), which reads:

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

       (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[.]

Id.

       Possession is defined as, “[k]nowingly or intentionally possessing a

controlled or counterfeit substance by a person not registered under this

act[.]” 35 P.S. § 780-113(a)(16).

       In asserting that the trial court erred in denying his request for a new

trial based on his weight claim, Appellant assails the credibility of Detective

Capp and Robert Steiner. Appellant’s Brief at 19.             Appellant states that it

“strains credulity to believe that [Detective Capp] could have been driving his

car, watching the road, and simultaneously observe a drug transaction from a

distance of 30 feet.”      Id.   Appellant also claims that the testimony of Mr.



____________________________________________


4Pennsylvania law designates heroin a Schedule I controlled substance. See
35 P.S. § 780-104(1)(ii)(10).

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Steiner, “who was given a generous plea deal for testifying at trial against

[Appellant], could only be viewed as unreliable and untrustworthy since he

would have told police and prosecutors whatever he believed that they wanted

to hear to save himself from a lengthier sentence.” Id.

      The trial court explained its denial of Appellant’s motion for a new trial

as follows:

      When the challenge to the weight of the evidence is predicated on
      the credibility of trial testimony, appellate review of a trial court’s
      decision is extremely limited. Unless the evidence is so unreliable
      and/or contradictory as to make any verdict based thereon pure
      conjecture, weight of the evidence claims shall be rejected.
      Commonwealth v. Rossetti, [] 863 A.2d 1185, 1191 (Pa. Super.
      2004). The fact-finder’s rejection of a defendant’s version of
      events or the rejection of an affirmative defense is within its
      discretion and not a valid basis for a weight of evidence attack.
      Commonwealth v. Bowen, 55 A.3d 1254, 1262 (Pa. Super.
      2011). This [c]ourt has reviewed the record and the verdict does
      not shock any sense of justice. [Appellant’s] only challenge is to
      the credibility of Detective Capp and Mr. Steiner. This [c]ourt has
      reviewed their testimony and is of the view that the jury properly
      weighed the testimony and ultimately deemed it credible.

Trial Court Opinion, 6/25/19, at 6-7.

      The trial court did not abuse its discretion in denying Appellant’s weight

claim. Detective Capp testified that on January 19, 2017, from approximately

10 yards away, he witnessed Appellant sell heroin to Mr. Steiner.               N.T.,

3/6/18, at 37-38.     Defense counsel made multiple attempts to discredit

Detective Capp’s testimony on cross-examination. See id. at 41-43.

      Mr. Steiner testified that on January 19, 2017, he contacted Appellant

“to see if I could score some heroin.” Id. at 47. Steiner testified that after


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communicating with Appellant, he met and paid Appellant $80 for 8 stamp

bags of heroin.     Id. at 52-53.      On cross-examination, defense counsel

thoroughly questioned Mr. Steiner about his cooperation with police and the

legal consequences of his actions on January 19, 2017. Id. at 57-60.

      Appellant’s weight claim focuses solely on the credibility of the

testimony of Detective Capp and Mr. Steiner. See Appellant’s Brief at 17-19.

It is well-settled that “the jury [is] the ultimate fact-finder and the sole arbiter

of the credibility of each of the witnesses.” Commonwealth v. Jacoby, 170

A.3d 1065, 1080 (Pa. 2017). Moreover, our Supreme Court “has found that

there is no justification for an appellate court, relying solely upon a cold

record, to review the fact-finder’s first-hand credibility determinations.”

Commonwealth v. White, 734 A.2d 374, 381 (Pa. 1999) (citations omitted).

      Accordingly, we find no merit to Appellant’s weight claim where the jury

properly acted as the fact-finder, and the trial court, in denying Appellant’s

request for a new trial based on the weight of the evidence, did not abuse its

discretion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/20/2019

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