J-S53006-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
JERMAINE SAMUEL,                           :
                                           :
                   Appellant               : No. 1546 WDA 2013

             Appeal from the Judgment of Sentence April 12, 2013,
                     Court of Common Pleas, Blair County,
              Criminal Division at No(s): CP-07-CR-0000667-2012
                         and CP-07-CR-0002674-2011

BEFORE: DONOHUE, OLSON and PLATT*, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED SEPTEMBER 29, 2014

        Jermaine Samuel (“Samuel”) appeals from the judgment of sentence

entered following his convictions of numerous counts of possession with

intent to deliver, criminal use of a communication facility, dealing in unlawful

proceeds and corrupt organizations.1 He raises eight issues in this appeal.

Following our review, we conclude that four of these issues have been

waived, one is moot and the rest are without merit. Accordingly, we affirm.

        Samuel’s convictions are the result of an investigation by the Office of

the Attorney General of Pennsylvania into an operation in which Samuel and

multiple other people conspired to bring large quantities of cocaine from

Baltimore to Pennsylvania for distribution in Altoona. The investigation

included the use of confidential informants and multiple means of electronic


1
    35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 7512(a), 5111, 911(b)(3).

*Retired Senior Judge assigned to the Superior Court.
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surveillance, including body wires on the confidential informants and

wiretaps and pen registers on at least four telephone numbers.             The

investigation resulted in 12 arrests.   During his week-long trial, evidence

established that Samuel coordinated and received quantities of cocaine from

Maryland, warehoused them in an office above a bar in Altoona, cut the

drugs and repackaged them for sale to particular street-level dealers.

Samuel was convicted of the crimes listed above and sentenced to an

aggregate term of 46½ to 103 years of incarceration. On April 22, 2013,

Samuel filed a timely post-sentence motion. The trial court did not rule on

Samuel’s post-sentence motion within 120 days of the date it was filed, and

so it was effectively denied by operation of law.2 This appeal follows.3

      Samuel raises the following issues for our review, which we have

reordered for purposes of our discussion:

            1. Whether the trial court erred in denying Samuel’s
               [o]mnibus [p]re-[t]rial [m]otion, which sought the
               suppression and exclusion of the contents of all
               wire, electronic, and/or oral communications, and
               evidence derived therefrom, relative to the non-


2
  The order denying Samuel’s post-trial motion was filed on December 3,
2013, after Samuel filed his notice of appeal to this Court. This is improper,
and as such, we could quash Samuel’s appeal. See Commonwealth v.
Borrero, 692 A.2d 158 (Pa. Super. 1997) (holding that the entry of an order
denying timely-filed post-sentence motions is a prerequisite to our exercise
of our jurisdiction). However, the trial court eventually entered the proper
order. In this instance, we will deem done what should have been done and
will not quash the appeal for this reason. See Pa.R.A.P. 902.
3
  The trial court did not order Samuel to file a Pa.R.A.P. 1925(b) statement
of errors complained of on appeal.


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              consensual interceptions of       the telephone
              numbers the Commonwealth         associated with
              Samuel?

          2. Whether there was sufficient evidence to sustain
             the jury’s finding of guilt with respect to each
             count of which Samuel was convicted?

          3. Whether the trial court erred in permitting the
             Commonwealth to present cumulative, prejudicial,
             and irrelevant evidence of ‘historical controlled
             purchases’ in which Samuel had no involvement?

          4. Whether the trial court erred in failing to grant
             Samuel’s   continuing     objection    that   the
             Commonwealth failed to properly authenticate the
             text messages allegedly authored by Samuel?

          5. Whether the trial court erred in denying Samuel’s
             [p]etition for [r]elease on [n]ominal [b]ail?

          6. Whether the trial court erred in its discretionary
             aspects of sentencing; in particular, whether the
             trial court erred in failing to consider certain
             mitigating factors, and whether the trial court
             abused its discretion in running all periods of
             incarceration consecutive [sic], resulting in what
             Samuel     submits   is   a   life  sentence    of
             incarceration?

          7. Whether the trial court erred in concluding at the
             time of sentencing that the Commonwealth
             preponderantly proved the weights of the
             controlled substances attributable to the following
             counts: 1, 5, 8, and 9 of CR 667-2012; and count
             1 of CR 2674-2011; and whether the trial court
             engaged in an improper procedure in determining
             that the Commonwealth established the requisite
             weights of controlled substances, thus implicating
             the legality of Samuel's sentence?

          8. Whether the trial court erred in allowing the
             Commonwealth to amend the criminal information



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               filed against Samuel, which had the effect of
               back-dating      Samuel’s     alleged    criminal
               involvement in this matter, where the trial court
               erroneously relied upon the decisions of another
               trial court judge relative to other defendants in
               the overall investigation?

Appellant’s Brief at 6-7.

      We first consider Samuel’s challenge to the trial court’s denial of his

suppression motion. Samuel argues that the Commonwealth’s applications

for wiretaps on two telephone numbers were “impermissibly ‘successive’ and

non-specific with regard to Samuel in that [they] were not based upon ‘new

evidence’ different from and in addition to information in support of previous

Authorization Orders;” that “the [a]pplications for the telephone numbers

associated with Samuel were [not] particularized with respect to Samuel”

and that “the Commonwealth failed to show that it employed reasonable

investigative techniques specific to Samuel.”       Appellant’s Brief at 15.

Despite these allegations, Samuel fails to develop his argument by

identifying the particular wiretap applications upon which he bases this

claim, much less where in the record they can be located.      See Pa.R.A.P.

2119(c) (“If reference is made to … any [] matter appearing of record, the

argument must set forth … a reference to the place in the record where the

matter referred to appears.”). He also fails to discuss meaningful authority




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in support of his claims.4    Instead, he “urges this Court to engage in a

comparative analysis of the facts contained in the applications” to “disclose[]

the glaring similarities of the evidence utilized in all of the applications[.]”

Id. at 16.

      We decline Samuel’s invitation.         The Rules of Appellate Procedure

require that appellants adequately develop each issue raised with discussion

of pertinent facts and pertinent authority. See Pa.R.A.P. 2119. It is not this

Court’s responsibility to comb through the record seeking the factual

underpinnings of an appellant’s claim.        Commonwealth v. Mulholland,

702 A.2d 1027, 1034 n.5 (Pa. 1997). Further, this Court will not become

the counsel for an appellant and develop arguments on an appellant’s

behalf. Commonwealth v. Gould, 912 A.2d 869, 873 (Pa. Super. 2006).

It was Samuel’s responsibility to provide an adequately developed argument

by identifying the factual bases of his claim and providing citation to and

discussion of relevant authority in relation to those facts. Because he has

failed to do so, we find this issue waived.

      Samuel’s second claim purports to challenge the sufficiency of the

evidence “with respect to each count of which Samuel was convicted.”


4
  Samuel cites three decisions from the Federal Court of Appeals for the
Ninth Circuit, all of which involve federal wiretap procedure. See Appellant’s
Brief at 14-15. Pennsylvania has its own law governing wiretap procedure,
the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S.A. § 5701
et seq. Samuel does not provide any law regarding Pennsylvania’s wiretap
statute or explain how or to what extent Pennsylvania’s wiretap law overlaps
with federal wiretap law.


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Appellant’s Brief at 22. Samuel has not specified the elements of the crimes

that he believes Commonwealth failed to adequately establish. In order to

develop a claim challenging the sufficiency of the evidence properly, an

appellant must specifically discuss the elements of the crime and identify

those which he alleges the Commonwealth failed to prove. Commonwealth

v. McDonald, 17 A.3d 1282, 1286 (Pa. Super. 2011). Samuel has failed to

do so, and so he has waived this claim for lack of development. See id.

      Furthermore, we note that the only argument that Samuel presents in

support of his sufficiency claim challenges the Commonwealth’s evidence as

incredible.   See Appellant’s Brief at 23-24.    This argument attacks the

weight, rather than the sufficiency, of the evidence.   Commonwealth v.

Feucht, 955 A.2d at 337, 382 (Pa. Super. 2008).         Accordingly, such an

argument is not relevant to a sufficiency of the evidence claim.    We also

note that Samuel did not raise a claim challenging the weight of the

evidence in his statement of questions involved on appeal; as such, we do

not address the merits of this argument. See Pa.R.A.P. 2116(a) (“No

question will be considered unless it is stated in the statement of questions

involved or is fairly suggested thereby.”).

      Next, Samuel argues that the trial court erred by allowing the

Commonwealth to present what he calls “cumulative, prejudicial, and

irrelevant evidence of ‘historical controlled purchases’” in which Samuel had

no involvement. Appellant’s Brief at 26. However, Samuel fails to identify



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the particular evidence to which he is objecting in any manner. He does not

identify what kind of evidence this was (i.e., testimonial or photographic) or

in what manner, or through what witness or witnesses, the contested

evidence was admitted. The only case law that Samuel cites in support of

this claim is the standard of review for claims challenging the admission of

evidence and the well-known principle that relevant evidence may still be

excluded if the potential for prejudice outweighs its probative value.

Appellant’s Brief at 26-27. Again, we will not comb the record for the facts

in support of Samuel’s claim and we will not develop arguments on his

behalf. This issue is waived. Mulholland, 702 A.2d at 1034 n.5; Gould,

912 A.2d at 873.

        We find the next issue waived for the same reason.     Samuel states

that the trial court erred by failing to exclude text messages allegedly

written by him because the Commonwealth failed to properly authenticate

them.    Appellant’s Brief at 28.   He states that “with regard to each text

message, the Commonwealth failed to articulate or provide independent

substantiation relative to its assertion … that the text messages played

during trial were, in fact, authored by Samuel.”      Appellant’s Brief at 28

(emphasis added). However, Samuel does not identify where in the record

the admission of these text messages occurred or what the content of the

text messages was. He does not discuss any relevant authority or otherwise




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develop his claim.5   This claim is woefully underdeveloped, and therefore

waived.

      Samuel’s fifth claim of error is that the trial court erred by denying his

request for release on nominal bail pursuant to Pa.R.E. 600(E). Appellant’s

Brief at 19.     However, because Samuel has been convicted and is

incarcerated, this claim is moot. Commonwealth v. Sloan, 907 A.2d 460,

464-65 (Pa. 2006) (holding that challenge to denial of request for release on

nominal bail is moot where defendant is no longer in pre-trial detention). As

such, we need not discuss the merits thereof.

      The sixth issue Samuel raises relates to the discretionary aspects of

his sentence. An appellant is not entitled to the review of challenges to the

discretionary aspects of a sentence as of right. Commonwealth v. Griffin,

65 A.3d 932, 935 (Pa. Super. 2013). Rather, an appellant challenging the

discretionary aspects of his sentence must invoke this Court's jurisdiction.

We determine whether the appellant has invoked our jurisdiction by

considering the following four factors:

            (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. 720; (3) whether appellant's brief has a
            fatal defect, Pa.R.A.P. 2119(f); and (4) whether
            there is a substantial question that the sentence



5
  The entirety of Samuel’s argument on this issue is two brief paragraphs,
totaling 14 lines. See Appellant’s Brief at 27-28.


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               appealed from is not appropriate under               the
               Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Id.

         Samuel timely filed his notice of appeal, preserved this issue in his

post-sentence motion, and included a statement pursuant to Pa.R.A.P.

2119(f) in his appellate brief.        In his Rule 2119(f) statement, Samuel

contends that the trial court erred by running his sentences consecutively,

thereby resulting in what is effectively a life sentence of incarceration. He

further contends that the trial court erred by “disregarding all mitigating

factors presented … at the time of sentencing[.]” Appellant’s Brief at 29, 31.

Essentially, Samuel claims that his sentence is excessive and that the trial

court erred by not considering mitigating factors. “[T]his Court has held that

an excessive sentence claim—in conjunction with an assertion that the court

failed    to   consider   mitigating   factors—raises   a   substantial    question.”

Commonwealth v. Raven, __ A.3d __, 2014 WL 3907103 at *6 (Pa.

Super. August 12, 2014). Thus, we consider the merits of this claim.

         As we do, we are mindful that “[s]entencing 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.”               Id.   To be

entitled to relief, “the appellant must establish, by reference to the record,

that the sentencing court ignored or misapplied the law, exercised its




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judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a

manifestly unreasonable decision.” Id. Our law further provides that

            [t]he appellate court shall vacate the sentence and
            remand the case to the sentencing court with
            instructions if it finds:

            (1) the sentencing court purported to sentence
            within the sentencing guidelines but applied the
            guidelines erroneously;

            (2) the sentencing court sentenced within the
            sentencing guidelines but the case involves
            circumstances where the application of the guidelines
            would be clearly unreasonable; or

            (3) the sentencing court sentenced outside the
            sentencing   guidelines and  the  sentence   is
            unreasonable.

            In all other cases the appellate court shall affirm the
            sentence imposed by the sentencing court.

42 Pa.C.S.A. § 9781(c).

      The only argument Samuel puts forth is that when imposing his

sentence, the trial court disregarded certain mitigating factors, including his

age; his lack of a history of violent crime; his cooperation and respect for

the trial court throughout the proceedings; and his two children. Appellant’s

Brief at 31.   Ostensibly, Samuel’s argument is that had the trial court

considered the mitigating factors, it would not have imposed this excessive

sentence.

      The record reveals that the trial court did consider Samuel’s argument

that he has no history of violent offenses, as it referenced this in its




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comments during the sentencing hearing. N.T., 4/12/13, at 76. The trial

court does not specifically address the other mitigating factors raised by

Samuel; however, Samuel cites no authority for the proposition that a trial

court must address all mitigating circumstances presented before it, and we

know of none.     To the contrary, a trial court is only required to state the

reasons for the sentence it imposes on the record, see 42 Pa.C.S.A.

§ 9781(b), and the record reveals that the trial court adequately explained

the reasons for the sentence it imposed.      See N.T., 4/12/13, at 74-76.

Samuel’s argument that the trial court abused its discretion is therefore

unavailing.

      Next, we address Samuel’s claim challenging the legality of his

sentence. At the time of Samuel’s trial and sentencing, 18 Pa.C.S.A. § 7508

provided for mandatory minimum sentences for drug trafficking convictions,

and the length of the mandatory minimum depended on the amount of the

drug involved.6    18 Pa.C.S.A § 7508.       At the sentencing hearing, the

Commonwealth presented evidence, via the testimony of multiple law

enforcement officers, regarding the amount of cocaine Samuel possessed.

Samuel argues first that the Commonwealth failed to adequately establish

that Samuel possessed the requisite amount of cocaine such that the

mandatory minimum sentence would apply for four of the counts of which he



6
 This statute was later ruled unconstitutional by this Court’s decision in
Commonwealth v. Watley, 81 A.3d 108 (Pa. Super. 2013).


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was convicted. Appellant’s Brief at 24-25. We note that Samuel has once

again failed to support this argument (which extends for a total of only eight

and a half lines of text) with citation to the record or discussion of the

relevant facts or law. See id. Accordingly, we find this aspect of Samuel’s

claim waived.

      Samuel also    argues   that   pursuant   to   this   Court’s   decision    in

Commonwealth v. Munday, 78 A.3d 661 (Pa. Super. 2013), it was for the

jury, and not the trial court, to determine whether he possessed enough

cocaine so as to implicate the mandatory minimum sentence on each count.

Appellant’s Brief at 25. As a general matter, Samuel is correct; any fact that

could increase the proscribed range of penalties to which a defendant is

exposed must be found by a jury.        Munday, 78 A.3d at 664-656.              The

record is clear, however, that the trial court did not sentence him in

accordance with mandatory minimum sentence provisions or any other

enhancement that required a factual predicate before application.         Rather,

the record reveals that the trial court sentenced Samuel within the standard

guideline ranges, which were substantially elevated because of Samuel’s

prior record score of five. N.T., 4/12/13, at 74. Thus, although it was not

for the trial court to make the determination as to how much cocaine Samuel

possessed for purposes of determining whether mandatory minimum

sentencing provisions applied, this error had no impact on Samuel’s

sentence. Samuel’s challenge to the legality of his sentence fails.



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      Finally, we arrive at Samuel’s last claim, in which he argues that the

trial court erred by allowing the Commonwealth to amend the criminal

informations filed against him. Samuel argues that the trial court erred in

permitting the amendment, which had the effect of backdating his

involvement in the cocaine distribution ring, without a hearing, and that

doing so caused him prejudice. Appellant’s Brief at 18.

      Rule of Criminal Procedure 564 governs the amendment of a criminal

information.7 The purpose of this rule is to “ensure that a defendant is fully

apprised of the charges, and to avoid prejudice by prohibiting the last

minute addition of alleged criminal acts of which the defendant is

uninformed.”     Commonwealth v. Page, 965 A.2d 1212, 1223-24 (Pa.

Super. 2009). When a challenge is raised to an amended information, the

salient inquiry is

             [w]hether the crimes specified in the original …
             information involve the same basic elements and
             evolved out of the same factual situation as the
             crimes specified in the amended … information. If
             so, then the defendant is deemed to have been
             placed on notice regarding his alleged criminal
             conduct. If, however, the amended provision alleges
             a different set of events, or defenses to the amended
             crime are materially different from the elements or
             defenses to the crime originally charged, such that


7
  “The court may allow an information to be amended when there is a defect
in form, the description of the offense(s), the description of any person or
any property, or the date charged, provided the information as amended
does not charge an additional or different offense. Upon amendment, the
court may grant such postponement of trial or other relief as is necessary in
the interests of justice.” Pa.R.Crim.P. 564.


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            the defendant would be prejudiced by the change,
            then the amendment is not permitted.

Id. at 1224.    In this case, the original information alleged a period of

criminal activity from October 5, 2011 to November 4, 2011, the date of

Samuel’s arrest. On February 28, 2012, as a result of information learned

from the Grand Jury investigation that commenced following Samuel’s

arrest, a second set of charges relating to the same time period was filed

against Samuel.    Subsequently, based upon further information obtained

from Grand Jury investigation, the Commonwealth sought to amend the

informations filed against Samuel (and his cohorts) only for the purpose of

extending the period of their criminal activities back to January 1, 2011.

See Motion to Amend Criminal Information, 7/12/12, at 7-11. The crimes

charged in the amended informations were identical to the crimes charged in

the original informations. The charges involved the same pattern of events

upon which the charges in the original informations were based; the

amendment simply extended the period of time in which the events

occurred.   As such, there was no “last minute addition of alleged criminal

acts” of which Samuel was not informed. Page, 965 A.2d at 1223-24. The

amendment did not run afoul of Rule of Criminal Procedure 564.

      Samuel argues that he was prejudiced because the amendments

“back-dated” his involvement in the criminal enterprise. Appellant’s Brief at

18.   Samuel misses the mark with this claim.        As made clear by the




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discussion of the relevant law above, prejudice in this context refers to

charging a defendant with crimes arising out of a set of events unrelated to

the conduct that served as the basis for the original charges.           See Page,

965 A.2d at 1224. That did not occur in this case. Samuel also argues that

the   trial   court   should    have   held   a   hearing   before   ruling   on   the

Commonwealth’s motion so that he would be “apprised of the allegations

resulting from the amendment” and “provided an effective opportunity to

object to the Commonwealth’s motion.”                Appellant’s Brief at 18-19.

Samuel’s      argument     is    disingenuous;     he   was     served    with     the

Commonwealth’s motion on the date it was filed (as well as a subsequent

motion to clarify the motion to amend); therefore, he was fully apprised of

the purpose for which the Commonwealth sought amendment. Furthermore,

Samuel could have objected to the Commonwealth motion by filing a

response thereto; however, he failed to do so at any point before trial

commenced.8 Samuel is due no relief on this claim.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

8
 The Commonwealth filed its motion to amend on July 12, 2012. Trial did
not commence until January 22, 2013.


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Date: 9/29/2014




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