J-S31028-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :      IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                        Appellee        :
                                        :
           v.                           :
                                        :
MORRIS McDUFFY,                         :
                                        :
                        Appellant       :      No. 2691 EDA 2013


      Appeal from the Judgment of Sentence Entered August 15, 2013,
  In the Court of Common Pleas of Philadelphia County, Criminal Division,
        at Nos. CP-51-CR-0008164-2012; CP-51-CR-0025982-2012.


BEFORE: BOWES, SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                             FILED JULY 30, 2014

     Appellant, Morris McDuffy, appeals from the judgment of sentence

entered following his conviction of one count each of possession with intent



substance. We affirm.

     We summarize the history of this case as follows. On the evening of

June 26, 2012, Philadelphia Police conducted surveillance on Harmer Street

due to complaints of narcotics sales.       During the surveillance, officers

observed Appellant and a co-defendant participating in multiple transactions

on the street. Appellant was arrested and police recovered $332 from his

person. Police also recovered marijuana from the co-defendant and several

of the people observed purchasing from Appellant and the co-defendant. At
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the conclusion of a nonjury trial on April 16, 2013, Appellant was convicted

of the crimes stated above. On August 15, 2013, Appellant was sentenced

to a term of incarceration of eleven and one-half to twenty-three months

plus two years of probation for the PWID conviction.           The trial court

                                                                   d with the

conviction of PWID for the purposes of sentencing.     Appellant filed post-

sentence motions on August 19, 2013, which the trial court denied on

September 13, 2013. This timely appeal followed.

     Appellant presents the following issues for our review:


     convictions where the Commonwealth did not make out their
     burden beyond a reasonable doubt due to the lack of evidence
     showing that [Appellant] was involved in the sale of marijuana.

     II. Whether the verdict was against the weight of the evidence,
     where [Appellant] was found in possession of a marijuana
     grinder containing marijuana, which would indicate that any
     marijuana possession was for personal use.

     III. Whether the sentence given by the court was unreasonably
     high, where it was in the aggravated range of the guidelines and
     the court did not take into consideration the mitigation indicated
     in the pre-sentence investigation.



     Appellant first argues that there was insufficient evidence to support

his conviction of PWID.     Specifically, Appellant contends that only US

currency was retrieved from Appellant, and no drugs were found on his




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person.   Appellant alleges that more evidence was required to connect

Appellant to the drug sale activity.

      In reviewing the sufficiency of the evidence, we must determine

whether the evidence admitted at trial and all reasonable inferences drawn

therefrom, viewed in the light most favorable to the Commonwealth as

verdict winner, were sufficient to prove every element of the offense beyond

a reasonable doubt. Commonwealth v. Rivera, 983 A.2d 1211, 1220 (Pa.

2009). It is within the province of the fact-finder to determine the weight to

                                                    lieve all, part, or none of

the evidence. Commonwealth v. Jackson, 955 A.2d 441, 444 (Pa. Super.

2008). The Commonwealth may sustain its burden of proving every element

of the crime by means of wholly circumstantial evidence. Commonwealth

v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011). Moreover, as an appellate

court, we may not re-weigh the evidence and substitute our judgment for

that of the fact-finder. Commonwealth v. Kelly, 78 A.3d 1136, 1139 (Pa.

Super. 2013).

      In order to uphold a conviction for possession of narcotics with the

                                                            -113(a)(30), the

Commonwealth must prove beyond a reasonable doubt that the defendant

possessed a controlled substance and did so with the intent to deliver it.

Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa. Super. 2000) (en




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banc

                                                        Commonwealth v.

Conaway, 791 A.2d 359, 362-                                         ion with

intent to deliver can be inferred from the quantity of the drugs possessed

and other surrounding circumstances, such as lack of paraphernalia for

                 Commonwealth v. Jones, 874 A.2d 108, 121 (Pa. Super.

2005).   Expert opinion testimony

whether the facts surrounding the possession of controlled substances are

                                    Commonwealth v. Ratsamy, 934 A.2d

1233, 1237 (Pa. 2007).

                                                        he following cogent

summary of the facts authored by the trial court:

              On June 26, 2012 at around 6:30 p.m., Philadelphia Police
       Officer Dwayne White and his partner, Officer Little, arrived on
       the 5500 block of Harmer Street in Philadelphia after receiving
       numerous complaints about the sale of narcotics on the block.
       N.T. 4/16/2013 at 10. At this time, Officer White and Officer
       Little set up surveillance in an unmarked police vehicle. N.T.
       4/16/2013 at 11. The officers then observed [Appellant] and
       another individual by the last name Wilkerson. Id. At this time,
       Officer White observed an unknown black male, later identified
       as Hightower, engage [Appellant] in conversation.           N.T.
       4/16/2013 at 12.       After this conversation, [Appellant] was
       observed walking to a silver Lincoln Town Car parked down the
       block. N.T. 4/16/2013 at 13. [Appellant] then opened the
       passenger door, reached in, and retrieved unknown items. Id.
       [Appellant] then received an unknown amount of United States
       currency from Hightower and made a pouring motion into
                             Id. At this time, an unknown black male
       wearing a grey shirt, and blue jeans walked down the block and


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     had a brief conversation with [Appellant]. Id. [Appellant] again
     walked down to the Lincoln Town Car, opened the passenger
     door, retrieved unknown items, then handed the items to the
     unknown black male. N.T. 4/16/2013 at 13-14. The unknown
     black male was unable to be stopped. N.T. 4/16/2013 at 14.

            At this time, Mr. Wilkerson was observed having a brief
     conversation with an unknown black male, later identified as
     Rawls. Id. Wilkerson then reached into his cargo short pocket
     and made a hand to hand transaction with Rawls.            N.T.
     4/16/2013 at 16. Mr. Wilkerson was also observed making a
     hand to hand transaction with an unknown black female later
     identified as Fatima Mobley. Id. Mr. Wilkerson was also seen at
     times going back and forth to the same Lincoln Town Car as
     [Appellant]. N.T. 4/16/2013 at 15.

           Officer Nance stopped Mr. Hightower, and recovered from
     his person were five glass jars, four with green tops and one
     with a black top, all stamped with a butterfly, all containing a
     green weedy substance, alleged marijuana. N.T. 4/16/2013 at
     36. Officer Perone stopped Mr. Rawls, and recovered from his
     person was one clear ziplock baggie, with spade symbols on it,
     containing a green weedy substance, alleged marijuana. N.T.
     4/16/2013 at 38-39. Officer Vaughn stopped Ms. Mobley, and
     recovered from her person was one clear ziplock baggie, with
     spade symbols on it, containing a green weedy substance,
     alleged marijuana.     N.T. 4/16/2013 at 39.      Officer Linder
     stopped [Appellant], and recovered from his person was $332
     United States currency. N.T. 4/16/2013 at 40. Officer Soto
     stopped Mr. Wilkerson, and recovered from his person were two
     clear ziplock baggies with spade symbols on them, each
     containing a green weedy substance, alleged marijuana. N.T.
     4/16/2013 at 41-42. Recovered from the Lincoln Town Car was
     [a] bronze color medal grinder containing a green weedy
     substance, alleged marijuana. N.T. 4/16/2013 at 40-41.

           All the narcotics were submitted to the chem lab and did
     test positive for marijuana.         N.T. 9/14/2012 at 36-42.
     [Appellant] was arrested and charged with possession with the
     intent to deliver a controlled substance, and knowing and
     intentional possession of a controlled substance.




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Trial Court Opinion, 11/15/13, at 1-3.

      Upon thorough review of the record, we conclude that the evidence

presented by the Commonwealth, although circumstantial, was sufficient to

establish that Appellant both possessed marijuana and possessed it with the

intent to distribute.   Thus, viewed in the light most favorable to the

Commonwealth, we conclude that there was sufficient evidence to prove the

elements of PWI

lacks merit.

      Appellant next argues that the verdict was against the weight of the

evidence. Basically, Appellant contends that the evidence presented at trial,

amounted to nothing more than mere suspicion and surmise.           Appellant

asserts that the trial court abused its discretion in denying his motion for a

new trial as the verdict was against the weight of the evidence.

      In Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013), our Supreme

Court set forth the following standards to be employed in addressing

challenges to the weight of the evidence:

            A motion for a new trial based on a claim that the verdict
      is against the weight of the evidence is addressed to the
      discretion of the trial court. Commonwealth v. Widmer, 560
      Pa. 308, 319, 744 A.2d 745, 751-52 (2000); Commonwealth
      v. Brown, 538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). A
      new trial should not be granted because of a mere conflict in the
      testimony or because the judge on the same facts would have
      arrived at a different conclusion. Widmer, 560 A.2d at 319-20,




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     clearly of greater weight that to ignore them or to give them
                                                          Id. at 320,
     744 A.2d at 752 (citation omitted). It has often been stated that

                                                                   and
     the award of a new trial is imperative so that right may be given
                                        Brown, 538 Pa. at 435, 648
     A.2d at 1189.


     with a weight of the evidence claim is distinct from the standard
     of review applied by the trial court:

          Appellate review of a weight claim is a review of the
          exercise of discretion, not of the underlying question
          of whether the verdict is against the weight of the
          evidence. Brown, 648 A.2d at 1189. Because the
          trial judge has had the opportunity to hear and see
          the evidence presented, an appellate court will give
          the gravest consideration to the findings and reasons
          advanced by the trial judge when reviewing a trial
                                                      gainst the
          weight of the evidence.          Commonwealth v.
          Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976).
          One of the least assailable reasons for granting or

          that the verdict was or was not against the weight of
          the evidence and that a new trial should be granted
          in the interest of justice.

     Widmer, 560 Pa. at 321-22, 744 A.2d at 753 (emphasis added).

            This does not mean that the exercise of discretion by the
     trial court in granting or denying a motion for a new trial based
     on a challenge to the weight of the evidence is unfettered. In

     explained:


          judgment, wisdom and skill so as to reach a
          dispassionate conclusion within the framework of the
          law, and is not exercised for the purpose of giving
          effect to the will of the judge. Discretion must be


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            exercised on the foundation of reason, as opposed to
            prejudice, personal motivations, caprice or arbitrary
            actions.   Discretion is abused where the course
            pursued represents not merely an error of judgment,
            but where the judgment is manifestly unreasonable
            or where the law is not applied or where the record
            shows that the action is a result of partiality,
            prejudice, bias or ill-will.

      Widmer, 560 A.2d at 322, 744 A.2d at 753 (quoting Coker v.
      S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-85
      (1993)).

Clay, 64 A.3d at 1054-1055.

      Our review of the record reflects that the trial court addressed

                lenge to the weight of the evidence and determined that it

lacked merit. Specifically, the trial court stated the following:

            The facts of this case are uncontroverted. Officer White
      and Officer Little observed [Appellant] converse with Mr.
      Hightower, walk to the silver Lincoln town car and observe
      unknown small items. The officers then observed [Appellant]
      receive United States currency from Mr. Hightower in exchange
      [for] the small items that [Appellant] retrieved from the silver
      Lincoln town car. Mr. Hightower was later stopped with five
      glass jars, four with green tops and one with a black top, all
      stamped with a butterfly, all containing a green weedy

                                                  rcotics found on Mr.
      Hightower provide clear and convincing evidence that [Appellant]
      possessed illegal drugs with the intent to distribute.

                                  ***


      weight of the evidence.

Trial Court Opinion, 11/15/13, at 5-6, 8.




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      Here, the trial court, sitting as the finder of fact, was free to believe

all, part, or none of the evidence against Appellant. The trial judge weighed

the evidence and concluded Appellant committed the crimes in question. We

decline Ap

the evidence. Accordingly, we conclude that the trial court did not abuse its



merit.

      In his final issue, Appellant argues that the trial court abused its

discretion in fashioning his sentence. Specifically, Appellant claims that the

trial court abused its discretion when it allegedly failed to take into

consideration mitigating circumstances when the trial court imposed a

sentence in the aggravated range of the sentencing guidelines.



aspects of his sentence.     Our standard of review is one of abuse of

discretion.   Sentencing is a matter vested in the sound discretion of the

sentencing judge, and a sentence will not be disturbed on appeal absent a

manifest abuse of discretion. Commonwealth v. Shugars, 895 A.2d 1270,

1275 (Pa. Super. 2006).

      Where an appellant challenges the discretionary aspects of a sentence



considered to be a petition for allowance of appeal.      Commonwealth v.




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W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007).            As we observed in

Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):

     [a]n appellant challenging the discretionary aspects of his

     four-part test:

           [W]e conduct a four-part analysis to determine: (1)
           whether appellant has filed a timely notice of appeal,
           see Pa.R.A.P. 902 and 903; (2) whether the issue
           was properly preserved at sentencing or in a motion
           to reconsider and modify sentence, see Pa.R.Crim.P.

           defect, Pa.R.A.P. 2119(f); and (4) whether there is a
           substantial question that the sentence appealed from
           is not appropriate under the Sentencing Code, 42
           Pa.C.S.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)). Objections to the discretionary aspects of a sentence are generally

waived if they are not raised at the sentencing hearing or in a motion to

modify the sentence imposed.    Id. (citing Commonwealth v. Mann, 820

A.2d 788 (Pa. Super. 2003)). Moreover, where an appellant fails to comply

with Pa.R.A.P. 2119(f) and the Commonwealth objects, the issue is waived

for purposes of review.   Commonwealth v. Farmer, 758 A.2d 173, 182

(Pa. Super. 2000).

     Herein, the first of the requirements of the four-part test is met

because Appellant brought a timely appeal.     Likewise, our review of the

record reflects that Appellant met the second requirement because he raised




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his challenge both at the time of sentencing and in his post-sentence

motion.

     However, Appellant has not met the third requirement of the test

because he failed to comply with the requirements of Rule 2119(f).

Specifically, Appellant has not filed a concise statement of reasons relied

upon for the allowance of appeal in his brief. The Commonwealth is aware

of the omission and has objected to this deficiency. See

Brief at 11-12.   Accordingly, because of the fatal defect in the appellate



claim and deem it to be waived.         Farmer, 758 A.2d at 182.        Cf.

Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa. Super. 2002) (holding

that if the appellant fails to comply with Pa.R.A.P 2119(f), Superior Court

may entertain discretionary sentencing claim if Commonwealth does not

                                                     P. 2119(f)).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/30/2014




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