J-S63041-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

VINCENT BASKERVILLE,

                            Appellant                 No. 395 MDA 2014


          Appeal from the Judgment of Sentence September 22, 2010
              in the Court of Common Pleas of Dauphin County
              Criminal Division at No.: CP-22-CR-0005324-2009


BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED FEBRUARY 27, 2015

        Appellant, Vincent Baskerville, appeals nunc pro tunc from the

judgment of sentence imposed following his jury conviction of two counts of

possession with intent to deliver a controlled substance,1 one count of

resisting arrest,2 one count of possession of drug paraphernalia,3 and one

count of disorderly conduct.4 Appellant challenges the sufficiency and the

weight of the evidence. We affirm.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
2
    18 Pa.C.S.A. § 5104.
3
    35 P.S. § 780-113(a)(32).
4
    18 Pa.C.S.A. § 5503.
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      Appellant’s convictions arose out of his arrest in the early morning

hours of December 28, 2008, when police broke up a street fight in

downtown Harrisburg.     At trial, Harrisburg Police Officer Nicholas Ishman

testified that Appellant attempted to flee the scene, wriggling out of the

jacket or sweatshirt he was wearing, and had to be tackled. (See N.T. Trial,

8/09/10, at 17).    On his arrest, police found one baggy containing four

corner tied baggies of marijuana, one baggy containing a rock of crack

cocaine, and $158 in cash.    (See id. at 20-22).     The Commonwealth and

Appellant stipulated that the controlled substances consisted of a 2.5 gram

bag of cocaine, and 8.3 grams of marijuana. (See id. at 12).

      Dauphin   County    Criminal   Investigation   Division   Detective   John

Goshert, admitted as an expert on street level drug trafficking, testified that

the drugs found on Appellant were possessed with intent to deliver. (See

id. at 64). On cross-examination defense counsel asked:

      Q.   Had there not been the testimony that the defendant said

      that he did not use drugs, had that not been part of the case,

      would that have changed your opinion?

      A. That one might have been too close to call[.]

(Id. at 72).

      On August 10, 2010, the jury found Appellant guilty of all counts

previously noted. And on September 22, 2010, the court sentenced him to




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an aggregate term of not less than three nor more than six years’

incarceration in a state correction institution.

       On October 18, 2013, the court reinstated Appellant’s post-sentencing

rights nunc pro tunc, after he filed a petition pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541–9546, claiming abandonment of

counsel.    (See Order, 10/18/13).             After argument, the trial court denied

Appellant’s    post-sentence       motion       on   January   29,   2014,   with   an

accompanying memorandum. This timely appeal followed.5

       Appellant raises two questions for our review:

              1. Did the trial court err in denying Appellant’s post[-]
       sentence motion when the evidence presented at trial was
       insufficient to sustain the jury’s verdicts of guilt or a finding that
       each and every element of the crimes charged was established
       beyond a reasonable doubt?

             2. Did the trial court err in denying Appellant’s post[-]
       sentence motion when the jury’s verdicts of guilt were so against
       the weight of the evidence as presented at trial so as to shock
       one’s sense of justice?

(Appellant’s Brief, at 6).

       “[W]ith respect to our sufficiency review, our standard of review is de

novo, however, our scope of review is limited to considering the evidence of

record, and all reasonable inferences arising therefrom, viewed in the light

____________________________________________


5
  Appellant filed a timely statement of errors on March 19, 2014. See
Pa.R.A.P. 1925(b). The trial court filed a Rule 1925(a) opinion on April 8,
2014. See Pa.R.A.P. 1925(a).




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most     favorable    to   the     Commonwealth         as    the     verdict       winner.”

Commonwealth v. Rushing, 99 A.3d 416, 420-21 (Pa. 2014) (citations

omitted).

              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. Where the evidence offered to
       support the verdict is in contradiction to the physical facts, in
       contravention to human experience and the laws of nature, then
       the evidence is insufficient as a matter of law. When reviewing a
       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).

       Here, preliminarily, we note that although Appellant purports to

challenge all of his convictions, his argument only addresses the two

convictions for possession with intent to deliver. (See Appellant’s Brief, at

13-28). Therefore, all other claims are waived. See Pa.R.A.P. 2119; see

also Commonwealth v. Rhodes, 54 A.3d 908, 915 (Pa. Super. 2012)

(argument waived for failure of adequate development, citing Pa.R.A.P.

2119).

       Next,   we    observe     that   Appellant    failed   to    provide     a   specific

identification of insufficiency in his Rule 1925(b) statement of errors,

precluding meaningful trial court review.           Appellant’s statement presented

only a boilerplate generic challenge:

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            1. The evidence presented at trial was insufficient to
      sustain the jury’s verdicts of guilt for the above captioned
      charges or a finding that each and every element of the crimes
      charged was established beyond a reasonable doubt, even when
      viewing the evidence in the light most favorable to the
      Commonwealth, as the verdict winner.

(Statement of Matters [sic] Complained of upon Appeal, 3/19/14).

      Because Appellant failed to identify the basis of the claim of

insufficiency, it is waived.   See Commonwealth v. Williams, 959 A.2d

1252, 1256-57 (Pa. Super. 2008) (citing Commonwealth v. Flores, 921

A.2d 517 (Pa. Super. 2007)).

      Moreover, Appellant’s claim would not merit relief.     The essence of

Appellant’s argument for insufficiency is that the drugs found on him could

have been for his personal use. (See Appellant’s Brief, at 13). We review

sufficiency challenges in the light most favorable to the Commonwealth as

verdict winner. See Rushing, supra at 420-21; Widmer, supra at 751-

52. Appellant’s first claim does not merit relief.

      Appellant’s second claim challenges the weight of the evidence. (See

Appellant’s Brief, at 6).

      Our standard of review is well-settled:

      The weight given to trial evidence is a choice for the factfinder.
      If the factfinder returns a guilty verdict, and if a criminal
      defendant then files a motion for a new trial on the basis that
      the verdict was against the weight of the evidence, a trial court
      is not to grant relief unless the verdict is so contrary to the
      evidence as to shock one’s sense of justice.

           When a trial court denies a weight-of-the-evidence motion,
      and when an appellant then appeals that ruling to this Court, our

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      review is limited. It is important to understand we do not reach
      the underlying question of whether the verdict was, in fact,
      against the weight of the evidence. We do not decide how we
      would have ruled on the motion and then simply replace our own
      judgment for that of the trial court.        Instead, this Court
      determines whether the trial court abused its discretion in
      reaching whatever decision it made on the motion, whether or
      not that decision is the one we might have made in the first
      instance.

      Moreover, when evaluating a trial court’s ruling, we keep in mind
      that an abuse of discretion is not merely an error in judgment.
      Rather, it involves bias, partiality, prejudice, ill-will, manifest
      unreasonableness or a misapplication of the law. By contrast, a
      proper exercise of discretion conforms to the law and is based on
      the facts of record.

      . . . [W]e note that the jury is free to believe all, part, or none
      of the evidence and to determine the credibility of the witnesses.

Commonwealth v. Ferguson, 2015 WL 49438, *4-5 (Pa. Super. filed

January 5, 2015) (citations omitted).

      Here, in an abbreviated argument of three sentences which improperly

relies on the sufficiency argument, Appellant asserts “the Commonwealth’s

expert . . . lacked the proper facts such that his conclusions are incorrect.”

(Appellant’s Brief, at 27). Appellant does not develop, or even specify the

details of this argument. He offers no authority whatsoever in support of his

claim.   This argument is waived as well.     See Pa.R.A.P. 2119; see also

Commonwealth v. Perez, 93 A.3d 829, 842 (Pa. 2014), cert. denied, 135

S. Ct. 480 (2014) (boilerplate undeveloped weight claim waived).

      Moreover, the issue would not merit relief. Trial counsel’s hypothetical

question did not undermine the credibility of the Commonwealth’s expert.


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At most, it suggested a basis for speculation about facts not in evidence, and

contrary to the facts of record. On independent review, we discern no basis

on which to conclude that the trial court abused its discretion in finding that

the jury’s verdict did not shock one’s sense of justice.      See Ferguson,

supra at *4-5.

      Judgment of sentence affirmed.

      Judge Panella joins the Memorandum.

      Judge Bowes concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/2015




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