J-A09027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

GREGORY ALLEN HESS,

                          Appellant                   No. 398 MDA 2016


           Appeal from the Judgment of Sentence December 31, 2015
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0004812-2014


BEFORE: GANTMAN, P.J., SHOGAN and OTT, JJ.

MEMORANDUM BY SHOGAN, J.:                              FILED JULY 17, 2017

      Appellant, Gregory Allen Hess, appeals from the judgment of sentence

entered following his convictions of criminal conspiracy to commit first-

degree murder, criminal use of a communication facility, and criminal

solicitation to commit first-degree murder. We affirm.

      The trial court summarized the procedural history of this case as

follows:

             [Appellant] was separately charged with multiple offenses
      involving three different hire-to-kill plots against three different
      victims. The series of hire-to-kill plots began with the allegation
      that [Appellant] hired Calvin Jones, Jr. (“Jones”) to kill
      [Appellant’s] wife’s friend or paramour, Chris Ward. [Appellant]
      was arrested on April 18, 2014, on charges of Criminal
      Solicitation to Commit First Degree Murder and Criminal Use of a
      Communication Facility. This case was docketed at CP-67-CR-
      2961-2014.
J-A09027-17


           After Jones turned police informant, [Appellant] was next
     charged with hiring Michael Crampton (a/k/a Mike Jones)
     (“Crampton”), a fellow York County Prison inmate, to kill Jones.
     [Appellant] was again arrested on June 11, 2014 and charged
     with Criminal Conspiracy and Solicitation to Commit First Degree
     Murder and Criminal Use of a Communication Facility.1 In order
     to secure his release from prison, Crampton also became a
     police informant.
          1
            Defense counsel’s motion states that [Appellant]
          was incarcerated from June 11, 2014 until his
          release on nominal bail on March 16, 2015. Def.’s
          Post-Sentence Motion, ¶ 2.

           Lastly, [Appellant] was charged on or about July 14, 2014
     with Conspiring or Soliciting two other York County Prison
     inmates, Edward Luttrell and Deonsae Bryant, to kill Crampton.
     The charges involving the plots against Jones and Crampton as
     victims were joined at the preliminary hearing on July 25, 2015,
     under one OTN, which became docketed at CP-67-CR-4812-
     2014.

            On October 15, 2014, the Commonwealth filed a motion
     requesting consolidation of [Appellant’s] cases, 2961-2014 and
     4812-2014.2 [Appellant] opposed consolidation of the cases and
     also requested that the [c]ourt sever the Jones (victim)
     Solicitation charge from the Crampton (victim) Solicitation
     charge that were previously joined at the preliminary hearing in
     case 4812-2014. On October 30, 2014, the Honorable Thomas
     H. Kelley, VI denied the Commonwealth’s motion to consolidate
     cases 2961-2014 and 4812-2014, but left all charges in 4812-
     2014 consolidated.3 [Appellant’s] jury trial in case 2961-2014
     began on May 18, 2015 and concluded on May 27, 2015. The
     jury found [Appellant] not guilty on the two counts charged,
     Soliciting the Murder of Chris Ward and Criminal Use of a
     Communication Facility.
          2
            The Motion also requested consolidation of the
          cases against the Defendant’s Co-Defendants, Toby
          Hess, docketed at CP-67-CR-4621-2014, CP-67-CR-
          4625-2014; and [Deonsae] Bryant, docketed at CP-
          67-CR -4740-2014.




                                  -2-
J-A09027-17


           3
             The undersigned was reassigned this case in or
           about October 2015 after Judge Kelley’s departure
           from the bench and Judge Trebilcock’s activation in
           the United States Army.

           [Appellant’s] jury trial in the instan[t] case, 4812-2015,
     began on November 9, 2015 and concluded on November 20,
     2015.    [Appellant] was found guilty on Count 2: Criminal
     Conspiracy to Commit First Degree Murder of Michael
     Crampton,4 Count 3: Criminal Use of a Communication Facility,5
     and Count 4: Criminal Solicitation to Commit First Degree
     Murder of Calvin Jones.6         [Appellant] was sentenced on
     December 31, 2015 to an aggregate term of 12-24 years in state
     corrections.    [Appellant’s] Post-Sentence Motion, filed on
     January 11, 2016, then follows.
           4
               18 Pa.C.S.§ 903(a)(1), § 2505(a).
           5
               18 Pa.C.S. § 7512(a).
           6
               18 Pa.C.S. § 902(a), § 2502(a).

Order Denying Post-Sentence Motion, 2/17/16, at 1-3.           The trial court

denied Appellant’s post-sentence motion. This timely appeal followed. Both

Appellant and the trial court have complied with Pa.R.A.P. 1925.

     Appellant presents the following issues for our review:

     1. WHETHER THE LOWER COURT ABUSED ITS DISCRETION
     WHEN IT GRANTED THE COMMONWEALTH[’]S REQUEST TO
     KEEP THE OTN CASES CONSOLIDATED?

     2. WHETHER THE EVIDENCE WAS INSUFFICIENT TO FIND THE
     APPELLANT GUILTY OF THE OFFENSES OF: CRIMINAL
     CONSPIRACY TO COMMIT MURDER; CRIMINAL USE OF
     COMMUNICATION FACILITY; AND CRIMINAL SOLICITATION TO
     COMMIT FIRST DEGREE MURDER?

     3. WHETHER THE VERDICT WAS AGAINST THE WEIGHT OF THE
     EVIDENCE?




                                       -3-
J-A09027-17


      4. WHETHER THE LOWER COURT ABUSED ITS DISCRETION
      WHEN IT SENTENCED THE APPELLANT CONSECUTIVELY?

Appellant’s Brief at 6 (capitalization in original).

      Appellant first argues that the trial court abused its discretion in

refusing to sever the two cases. Appellant’s Brief at 20-30. Appellant claims

the evidence presented in the cases was confusing and difficult for the jury

to separate. Id. at 24. He also contends that the jury relied upon evidence

in one case to infer Appellant’s guilt in the other case.        Id.   Ultimately,

Appellant contends that he was prejudiced by trying the cases together. Id.

      Whether to join or sever offenses for trial is within the trial court’s

discretion and will not be reversed on appeal absent a manifest abuse

thereof, or prejudice and clear injustice to the defendant. Commonwealth

v. Wholaver, 989 A.2d 883, 898 (Pa. 2010). Consolidation and severance

of criminal matters are governed by Pennsylvania Rules of Criminal

Procedure 582 and 583, which provide in relevant part as follows:

      RULE 582. JOINDER--TRIAL OF SEPARATE INDICTMENTS
      OR INFORMATIONS

      (A)   Standards

            (1) Offenses charged in separate indictments or
            informations may be tried together if:

                   (a) the evidence of each of the
                   offenses would be admissible in a
                   separate trial for the other and is capable
                   of separation by the jury so that there is
                   no danger of confusion; or

                   (b) the offenses charged are based on
                   the same act or transaction.

                                       -4-
J-A09027-17


                                    * * *

      RULE 583. SEVERANCE OF OFFENSES OR DEFENDANTS

      The court may order separate trials of offenses . . . if it appears
      that any party may be prejudiced by offenses . . . being tried
      together.

Pa.R.Crim.P. 582, 583.

      In Commonwealth v. Burton, 770 A.2d 771 (Pa. Super. 2001), this

Court summarized the appropriate tests to be applied under these rules as

follows:

      Pursuant to these rules, we must determine:

            “[1] whether the evidence of each of the offenses
            would be admissible in a separate trial for the other;
            [2] whether such evidence is capable of separation
            by the jury so as to avoid danger of confusion; and,
            if the answers to these inquiries are in the
            affirmative; [3] whether the defendant will be unduly
            prejudiced by the consolidation of the offenses.”

      [Commonwealth v. ]Boyle, 733 A.2d [633,] at 635 [(Pa.
      Super. 1999)] (quoting Commonwealth v. Collins, 703 A.2d
      418, 422 (Pa. 1997)) [(quoting Commonwealth v. Lark, 543
      A.2d 491, 496-497 (Pa. 1988))].      In deciding whether the
      evidence of each offense would be admissible in a separate trial,
      we must keep in mind that

            “evidence of distinct crimes are [sic] not admissible
            against a defendant being prosecuted for another
            crime solely to show his bad character and his
            propensity for committing criminal acts. However,
            evidence of other crimes . . . may be admissible . . .
            where the evidence is relevant for some other
            legitimate purpose . . . .”

      Id. at 636 (citations omitted). Legitimate purposes include:

            “(1) motive; (2) intent; (3) absence of mistake or
            accident; (4) a common scheme, plan or design


                                     -5-
J-A09027-17


            embracing commission of two or more crimes so
            related to each other that proof of one tends to
            prove the others; or (5) to establish the identity of
            the person charged with the commission of the crime
            on trial, in other words, where there is such a logical
            connection between the crimes that proof of one will
            naturally tend to show that the accused is the person
            who committed the other.”

      Id. (quoting Commonwealth v. Buchanan, 689 A.2d 930, 932
      (Pa. Super. 1997)).

Burton, 770 A.2d at 778.      Additionally, evidence of other crimes may be

admitted where such evidence is part of the history of the case and forms

part of the natural development of the facts. Collins, 703 A.2d at 422-423.

Our Supreme Court has further instructed that consolidation of indictments

requires only that there are shared similarities in the details of each crime.

Commonwealth v. Newman, 598 A.2d 275, 278 (Pa. 1991). Moreover, in

Lark, our Supreme Court explained the following:

      Another “special circumstance” where evidence of other crimes
      may be relevant and admissible is where such evidence was part
      of the chain or sequence of events which became part of the
      history of the case and formed part of the natural development
      of the facts. This special circumstance, sometimes referred to as
      the “res gestae” exception to the general proscription against
      evidence of other crimes, is also known as the “complete story”
      rationale, i.e., evidence of other criminal acts is admissible “to
      complete the story of the crime on trial by proving its immediate
      context of happenings near in time and place.”

Lark, 543 A.2d at 497 (citations omitted).

      Our review of the record supports the trial court’s determination to

deny Appellant’s request to sever the charges.      The evidence established

that Crampton met Appellant in April of 2014, when they were both in York


                                     -6-
J-A09027-17


County Prison.    N.T., 11/12-13/15, at 510.        While in prison, Appellant

offered Crampton, who was expecting to be released soon, $10,000.00 and

then $15,000.00 to kill Jones. Id. at 512-515. Crampton understood that

the purpose for killing Jones was to prevent Jones from testifying against

Appellant.   Id. at 513.    Appellant attempted to provide Crampton with

various telephone numbers as well as information regarding Jones’s

residence, Jones’s place of employment, and photographs of Jones that had

been taken surreptitiously at a court proceeding. Id. at 520-522. On June

4, 2014, when Crampton was not released from prison as he had expected,

Crampton sent a letter to the York County District Attorney offering to

provide evidence against Appellant.        Id. at 536-537.   After meeting with

members of the District Attorney’s office, Crampton’s charges were then

dismissed and he was released from prison. Id. at 536-537. Subsequently,

on June 10, 2014, Crampton met with Appellant outside of prison to discuss

the terms of payment for Crampton to kill Jones. Id. at 546-551. Appellant

subsequently was arrested, and Crampton was informed that he was also

the target of a killing. Id. at 553-554.

      The record further establishes that, after Appellant’s bail was revoked

and he returned to York County Prison, he became reacquainted with

Luttrell, a fellow inmate. N.T., 11/12-13/15, at 674-679. Once the two men

became friendly, Appellant began telling Luttrell that Appellant hated

Crampton because Crampton had set-up Appellant, and Appellant wanted


                                     -7-
J-A09027-17


Crampton to be killed before Appellant’s preliminary hearing.     Id. at 688-

690.     As Appellant became more anxious, Luttrell suggested that fellow

inmate Bryant, who was due to be released, could shoot Crampton. Id. at

691-692.     At the behest of Appellant, Luttrell then approached Bryant to

shoot Crampton.      Id. at 692-695.      Bryant agreed that he would shoot

Crampton in the head. N.T., 11/16-17/15, at 863. In fact, Bryant testified

to the details of a conversation between himself, Appellant, and Luttrell

regarding the details of the shooting of Crampton, which would prevent

Crampton from appearing at Appellant’s preliminary hearing.       Id. at 874-

876.

       The facts establish that the two episodes, i.e., the hiring of Crampton

to kill Jones and the hiring of Bryant to kill Crampton, occurred a short time

apart.    In the first episode, Appellant solicited Crampton to kill Jones to

prevent Jones from testifying against Appellant.     In the second episode,

Appellant solicited Bryant, via Luttrell, to kill Crampton to prevent Crampton

from testifying against Appellant. Therefore, we agree with the trial court

that, although the intended victims of the two incidents were different, the

evidence of each set of offenses would be admissible in a separate trial for

the other under the theory that the evidence of each case was necessary in

the other to enable the Commonwealth to present a cohesive narrative to

the jury, i.e., to tell the “complete story.”




                                       -8-
J-A09027-17


      Moreover, Appellant has not presented a viable argument that the jury

was incapable of separating the crimes to avoid confusion.         Our Supreme

Court has held that “where a trial concerns distinct criminal offenses that are

distinguishable in time, space, and the characters involved, a jury is capable

of separating the evidence.” Collins, 703 A.2d at 423. Appellant has failed

to prove that the jury was not capable of separating evidence of the

respective crimes to avoid confusion.      Indeed, the record establishes that

the jury found Appellant not guilty of criminal solicitation of the first-degree

murder of Crampton.      Consequently, there is no indication that Appellant

was prejudiced by the consolidation of the offenses. Hence, Appellant has

failed to establish the trial court abused its discretion in refusing to sever the

charges.

      Appellant next argues that there was insufficient evidence to support

his convictions. Appellant’s Brief at 30-44. Specifically, Appellant contends

that the evidence was insufficient to find him guilty of criminal conspiracy to

commit murder of the first degree of Crampton.            Id. at 30-34.     Also,

Appellant claims that the evidence was insufficient to convict him of criminal

use of communication facility. Id. at 34-37. Lastly, Appellant alleges the

evidence was insufficient to convict him of criminal solicitation to commit

first-degree murder of Jones. Id. at 37-44.

      As a preliminary matter, “to preserve their claims for appellate review,

appellants must comply whenever the trial court orders them to file a


                                      -9-
J-A09027-17


Statement of [Errors] Complained of on Appeal pursuant to [Rule] 1925.

[As a general rule, a]ny issues not raised in a [Rule] 1925(b) statement will

be deemed waived.” Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa.

2005) (quoting Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)).

“If [an appellant] wants to preserve a claim that the evidence was

insufficient, then the [Rule] 1925(b) statement needs to specify the element

or elements upon which the evidence was insufficient.” Commonwealth v.

Manley, 985 A.2d 256, 262 (Pa. Super. 2009). See also Commonwealth

v. Williams, 959 A.2d 1252, 1257-1258 (Pa. Super. 2008) (finding waiver

of sufficiency of evidence claim where the appellant failed to specify in Rule

1925(b) Statement the elements of particular crime not proven by the

Commonwealth).

      Appellant’s Rule 1925(b) statement asserts, “The [e]vidence was

insufficient for the jury to find [Appellant] guilty of all the [o]ffenses.”

Appellant’s Rule 1925(b) Statement, 3/28/16, at 1. Appellant’s non-specific

claim challenging the sufficiency of the evidence fails to specify which

elements of which crimes were allegedly not proven by the Commonwealth.

Consequently, Appellant waived this claim on appeal.         Castillo; Lord;

Manley.

      Furthermore, even if he had properly preserved the issue for appeal,

Appellant would not be entitled to relief.     We observe that we analyze




                                    - 10 -
J-A09027-17


arguments challenging the sufficiency of the evidence under the following

parameters:

            Our standard when reviewing the sufficiency of the
     evidence is whether the evidence at trial, and all reasonable
     inferences derived therefrom, when viewed in the light most
     favorable to the Commonwealth as verdict-winner, are sufficient
     to establish all elements of the offense beyond a reasonable
     doubt.     We may not weigh the evidence or substitute our
     judgment for that of the fact-finder. Additionally, the evidence
     at trial need not preclude every possibility of innocence, and the
     fact-finder is free to resolve any doubts regarding a defendant’s
     guilt unless the evidence is so weak and inconclusive that as a
     matter of law no probability of fact may be drawn from the
     combined circumstances. When evaluating the credibility and
     weight of the evidence, the fact-finder is free to believe all, part
     or none of the evidence. For purposes of our review under these
     principles, we must review the entire record and consider all of
     the evidence introduced.

Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014)

(quoting Commonwealth v. Emler, 903 A.2d 1273, 1276-1277 (Pa. Super.

2006)).

     The trial court addressed the general sufficiency of the evidence to

support each of Appellant’s convictions.       In disposing of Appellant’s post-

sentence motion, the trial court offered the following extensive discussion

pertaining to Appellant’s claim that the Commonwealth presented insufficient

evidence to convict him of criminal solicitation to commit the first degree

murder of Calvin Jones, at Count 4:

           We find there was sufficient evidence for the jury to find
     [Appellant] guilty of this offense.   The Criminal Solicitation
     statute reads:




                                      - 11 -
J-A09027-17


          A person is guilty of solicitation to commit a crime if
          with the intent of promoting or facilitating its
          commission he commands, encourages or requests
          another person to engage in specific conduct which
          would constitute such crime or an attempt to commit
          such crime or which would establish his complicity in
          its commission or attempted commission.

     [18 Pa.C.S. § 902.]

           Crampton testified that he met [Appellant] in April 2014,
     when both were incarcerated in York County Prison. Crampton
     was in prison on pending drug charges and a state parole
     detainer.   Crampton testified that he and [Appellant] had
     multiple conversations involving Jones’s killing.            The
     conversations began when Crampton and [Appellant] were in the
     prison’s pre-class section and [Appellant] requested that
     Crampton kill Jones to prevent Jones from testifying against
     [Appellant] in case 2961-2014.        At the time, Jones was
     scheduled to testify against [Appellant] at a preliminary hearing
     on May 9, 2014. Crampton testified that [Appellant] initially
     offered him $10,000.00 to commit the killing, but later agreed to
     pay $15,000.00, in two installments of $7,500.00.

            [Appellant] gave Crampton information about Jones on two
     pieces of paper while in prison. On one piece, [Appellant] wrote
     his son, Toby Hess’s name and phone number, [Appellant’s] own
     name, inmate number, and phone number, and wrote “Calvin
     Curtis Jr. Labron (snitch) Harris St HBG.” On the second piece of
     paper, [Appellant] wrote directions to Jones’s job in Harrisburg.
     Crampton testified that [Appellant] asked him to contact his son,
     Toby after Crampton was released from prison.           Crampton
     testified that he believed he would soon be released from prison,
     and advised [Appellant] of this belief.

            Crampton had a preliminary hearing scheduled on May 28,
     2014, however, he was not released as he had hoped due to a
     state parole detainer issue.      Because Crampton was not
     released, he wrote to the York County District Attorney’s Office
     on June 3, 2014 that [Appellant] had requested he “take out”
     Jones. On June 9, 2014, Crampton was interviewed by the DA’s
     office, released from prison, and placed a recorded call to
     [Appellant] while working with authorities.


                                  - 12 -
J-A09027-17


           Additionally, Crampton contacted [Appellant] the next day
     to set up an in-person meeting. Crampton did not tell police
     about this meeting because he hoped to secretly receive the full
     $15,000.00 in advance of killing Jones, while still cooperating
     with authorities to get consideration on his pending drug
     charges.      When Crampton met with [Appellant] on
     approximately June 11, 2014, Crampton assured [Appellant]
     that he could handle the job. Although Crampton now requested
     the money upfront, there was no money exchanged during the
     in-person meeting. [Appellant] was arrested shortly after this
     meeting and no one was killed.

            [Appellant] rigorously attacked Crampton’s credibility.
     [Appellant] painted Crampton out as opportunistic for
     withholding information about the solicitation until he could
     secure his own release from prison in June 2014. The defense
     presented multiple witnesses, including: Crampton’s cousin who
     testified that he had not seen Crampton when he met with
     [Appellant] in-person as Crampton had testified; Crampton’s
     cellmate, who testified he had not heard the Crampton-
     [Appellant] conversations; and Mitchel Perez, a witness whose
     testimony included that Crampton stated he was “setting up
     some white boy,” which was [Appellant].

            [Appellant] took the stand and acknowledged talking to
     Crampton while in prison but denied requesting that Crampton
     kill Jones. [Appellant] testified that he gave Crampton his and
     Toby’s phone numbers as Crampton repeatedly asked
     [Appellant] for a job. Several of the witnesses who were prison
     inmates testified that [Appellant] had a reputation for being a
     wealthy and successful businessman. [Appellant] testified that
     his in-person meeting with Crampton was for the purpose of
     bringing Crampton a job application.

            [Appellant] also testified as to why he wrote down Jones’s
     address for Crampton. Crampton advised [Appellant] that he
     was a drug dealer and that he hated snitches. [Appellant]
     testified that he gave Crampton Jones’s address so that
     Crampton could avoid selling drugs to Jones, a snitch.

            Along with Crampton’s testimony, the Commonwealth
     presented testimony from [Appellant’s] son, Toby Hess. Toby
     testified that [Appellant] called him from prison to request that
     Toby attend [Appellant’s] preliminary hearing on May 9, 2014,

                                  - 13 -
J-A09027-17


      and take photos of Calvin Jones. As the phone call was made by
      [Appellant] in prison, it was recorded and played for the jury.
      Toby testified that following the preliminary hearing, [Appellant]
      called him again from prison to confirm the photos were taken
      and requested that Toby keep the photos on his phone.

            Toby also testified that he obtained a prepaid phone with a
      Maryland phone number for [Appellant] and programmed
      Crampton’s phone number in it. Toby texted Crampton the
      Maryland phone number on about June 10, 2014. [Appellant]
      disputed that the prepaid phone was set up to contact
      Crampton, and argued that [Appellant’s] attorney had directed
      [Appellant] to obtain a prepaid phone for a lawful purpose of
      keeping in communication.

             After reviewing the evidence and drawing all reasonable
      inferences in a light most favorable to the Commonwealth, there
      was sufficient evidence to convict [Appellant] of this offense.
      The Commonwealth presented evidence to which a jury could
      find that [Appellant] deliberately intended to have Jones killed in
      order to prevent Jones from testifying against him in the related
      case, and requested that Crampton [carry] out the task.
      Crampton testified that he informed [Appellant] that he could
      handle that task during their in-person meeting. The jury was
      free to believe Crampton’s testimony, and find [Appellant’s]
      rendition of the facts less believable. Indeed, this trial required
      extensive weighing of witness credibility. In the end, the jury
      did not find [Appellant’s] explanation of the evidence credible,
      and the Court will not disturb that determination.

Order Denying Post-Sentence Motion, 2/17/16, at 4-8 (footnotes omitted).

      With regard to Appellant’s claim that the Commonwealth failed to

present sufficient evidence to support his convictions of criminal conspiracy

to commit the first-degree murder of Crampton at Count 2, and criminal use

of a communication facility at Count 3, the trial court offered the following

analysis in its opinion pursuant to Pa.R.A.P. 1925(a):




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J-A09027-17


           In Count 2, Appellant was convicted of Criminal Conspiracy
     to Commit the First Degree Murder of Michael Crampton. To be
     convicted of criminal conspiracy, the jury must find that:

          (1) the defendant intended to commit or aid in the
          commission of the criminal act; (2) the defendant
          entered into an agreement with another ... to
          engage in the crime; and (3) the defendant or one or
          more of the other co-conspirators committed an
          overt act in furtherance of the agreed upon crime.4
                4
                   Commonwealth v. Montalvo, 956
                A.2d 926, 932 (Pa. 2008) (internal
                citations and quotations omitted).

            When viewed in the light most favorable to the
     Commonwealth as the verdict winner, we find there was
     sufficient evidence to convict Appellant of these remaining
     charges. The Commonwealth presented evidence that showed
     Appellant met two of his co-conspirators, [Luttrell] and [Bryant ]
     while all were incarcerated in the York County Prison. Appellant
     stated to Luttrell his desire that Crampton be killed prior to
     Crampton testifying against Appellant at his preliminary hearing.
     Luttrell decided that Bryant would be a good candidate to
     complete the killing. Luttrell approached Bryant in York County
     Prison about killing Crampton, and explained that in exchange,
     Appellant would provide Bryant a job and a truck after Bryant’s
     release. Bryant testified that he liked the offer as he wanted to
     financially support his family with the job. Bryant agreed and
     testified that he intended on shooting Crampton in the head.
     Bryant also testified that the plan included preliminary
     arrangements for someone to provide him with money to
     purchase a gun to complete the murder.

           Bryant told Luttrell that he would be released from prison
     soon, although his release did not occur. Luttrell testified that
     all communication between Appellant and Bryant went through
     him. Bryant testified that on one occasion the three men were
     together in the Prison yard to discuss the murder, but generally
     Luttrell was Appellant’s “mouthpiece” between Bryant and
     Appellant.

          In order to develop a trust among the co-conspirators,
     they arranged a money transfer to Bryant’s girlfriend, Sandel.

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J-A09027-17


     Bryant testified that the trust deposit was to prove to Appellant
     that he could be trusted not to talk to the police. To begin the
     transfer, Appellant needed to get a hold of his son, Toby, to
     obtain the agreed upon cash, $500. Luttrell [arranged] for
     Appellant to use another prison inmate’s unique phone PIN in an
     attempt to evade detection.        Luttrell also gave Appellant
     Sandel’s contact information, which came from Bryant.

            Appellant called Toby using the inmate’s PIN and arranged
     for Toby to take the $500 cash to Sandel, who was not
     incarcerated. Toby drove to Sandel’s residence and conveyed
     the $500 to her. Sandel then took a portion of that money and
     put it on Luttrell’s prison account, thereby completing their
     intended trust deposit. Luttrell testified that he received a cut of
     the money for working as the middleman in the transfer. The
     Commonwealth argued that this money transfer was an overt act
     in furtherance of the conspiracy.

           Fortunately, the conspiracy did not lead to Crampton’s
     murder. Luttrell decided to advance his own efforts to get out of
     prison and into the York County Drug Court program by writing
     to the York County District Attorney’s Office and disclosing the
     plot to kill Crampton. Appellant, Bryant, and Toby Hess were
     charged with the conspiracy. Bryant was not released from
     prison. Crampton testified that he instead went on the run after
     he received verbal death threats at his home.

            Giving the Commonwealth all reasonable inferences, the
     jury could have found beyond a reasonable doubt that Appellant
     intended to kill Crampton to prevent him from testifying against
     Appellant; that Appellant entered into an agreement with others
     to commit the killing; and found that the trust deposit was an
     act in furtherance of this conspiracy.

           Appellant was also found guilty in Count 3 of Criminal Use
     of a Communication Facility. Pursuant to 18 Pa.C.S. § 7512(a),
     a person commits this offense, a felony three, if the person
     “uses a communication facility to commit, cause or facilitate the
     commission or the attempt thereof of any crime which
     constitutes a felony under this title.”     The definition of a
     “communication facility” includes a telephone.5
           5
               18 Pa.C.S. § 7512(c).


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            The Commonwealth presented evidence that Appellant,
      while incarcerated in the York County Prison, used the prison’s
      phone to call his son, Toby. Using the prison’s phone, Appellant
      requested that Toby take photographs of [Jones] while Toby
      attended Appellant’s preliminary hearing. The Commonwealth
      introduced two pertinent recorded phone conversations between
      Appellant and Toby.       On the first recorded call, Appellant
      requested that Toby [attend] the preliminary hearing and take
      photos of Jones. On the second recorded call, Appellant called
      Toby again from prison to confirm that Toby took the photos at
      the preliminary hearing, and requested that Toby retain the
      photos in his cell phone.

              When viewed with all the evidence presented at trial, the
      phone conversations linked Appellant with using Toby and
      Crampton to aid his plot to kill Jones.       We find that the
      Commonwealth presented sufficient evidence to convict
      Appellant of this offense as Appellant used the prison’s phone to
      facilitate or further the commission of a felony, i.e., the
      solicitation of [Jones’] murder. Further, as described above,
      there was evidence that Appellant used the prison’s phone to
      contact Toby in relation to the conspiracy to kill [Crampton].
      Accordingly, the jury verdict should stand.

Trial Court Opinion, 5/6/16, at 3-7.

      Thus, the evidence at trial was sufficient to show Appellant was guilty

of the crimes of criminal solicitation to commit the first-degree murder of

Jones, criminal conspiracy to commit the first-degree murder of Crampton,

and criminal use of a communication facility.       Therefore, we conclude

Appellant’s challenge to the sufficiency of the evidence would merit no relief

even if it had been properly preserved.

      In his third issue, Appellant argues that the verdict was against the

weight of the evidence.   Appellant’s Brief at 44-49.   Essentially, Appellant

contends that the Commonwealth’s witnesses lacked credibility because they


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J-A09027-17


had convictions for crimen falsi, and that they lied in order to benefit

themselves in the form of reduced sentences, participation in treatment, and

dismissal of charges.

     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-[7]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-[3]20, 744 A.2d at 752. Rather, “the role of the
     trial judge is to determine that ‘notwithstanding all the facts,
     certain facts are so clearly of greater weight that to ignore them
     or to give them equal weight with all the facts is to deny
     justice.’” Id. at 320, 744 A.2d at 752 (citation omitted). It has
     often been stated that “a new trial should be awarded when the
     jury’s verdict is so contrary to the evidence as to shock one’s
     sense of justice and the award of a new trial is imperative so
     that right may be given another opportunity to prevail.” Brown,
     538 Pa. at 435, 648 A.2d at 1189.

           An appellate court’s standard of review when presented
     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
           court’s determination that the verdict is against the


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J-A09027-17


            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
            denying a new trial is the lower court’s conviction
            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-[3]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
      describing the limits of a trial court’s discretion, we have
      explained:

            The term “discretion” imports the exercise of
            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
            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-
      [11]85 (1993)).

Clay, 64 A.3d at 1054-1055. “Thus, the trial court’s denial of a motion for a

new trial based on a weight of the evidence claim is the least assailable of its

rulings.” Commonwealth v. Diggs, 949 A.2d 873, 879-880 (Pa. 2008).

      The trial court aptly addressed this issue challenging the weight of the

evidence in its order denying Appellant’s post-sentence motions as follows:


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J-A09027-17


             The [c]ourt finds this argument [challenging the weight of
      the evidence to be] unpersuasive. The jury heard the attacks on
      the Commonwealth’s witnesses’s credibility and bias.            This
      evidence had to be weighed against [Appellant’s] and defense
      witnesses’s credibility as well. There were multiple occasions
      where      [Appellant’s]    testimony     conflicted   with      the
      Commonwealth’s witnesses during the approximately two-week
      trial.   After weighing the substantial amount of witness
      testimony and evidence, the jury found [Appellant] guilty on
      Counts 2 through 4. We decline to grant a new trial as the
      [c]ourt will not reassess the jury’s determination of credibility or
      find that “certain facts are so clearly of greater weight” that to
      ignore or give them equal weight would deny justice.22 The
      verdict did not shock the conscience or was against the weight of
      the evidence, so the [c]ourt will not grant relief.
            22
                 Widmer, 744 A.2d at 752.

Order Denying Post-Sentence Motion, 2/17/16, at 10.

      Based upon our complete review of the record, we are compelled to

agree with the trial court. Here, the jury, sitting as the finder of fact, was

free to believe all, part, or none of the evidence against Appellant. The jury

weighed the evidence and concluded Appellant perpetrated the three crimes

in question.     We agree that this determination is not so contrary to the

evidence as to shock one’s sense of justice.          We decline Appellant’s

invitation to assume the role of fact-finder and reweigh the evidence.

Accordingly, we conclude that the trial court did not abuse its discretion in

refusing to grant relief on Appellant’s challenge to the weight of the

evidence.

      Appellant last argues that the trial court abused its discretion in

fashioning his sentence.    Appellant’s Brief at 49-52.    Basically, Appellant


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J-A09027-17


presents several claims that he believes support his contention that he

should not have received consecutive sentences.

      We note that 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). It is well settled that there is no absolute right to appeal

the discretionary aspects of a sentence.     Commonwealth v. Hartle, 894

A.2d 800, 805 (Pa. Super. 2006). Rather, where an appellant challenges the

discretionary aspects of a sentence, the appeal should be considered a

petition for allowance of appeal.    Commonwealth v. W.H.M., 932 A.2d

155, 163 (Pa. Super. 2007).

      As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      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.
            [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 appealed from
            is not appropriate under the Sentencing Code, 42
            Pa.C.S.A. § 9781(b).




                                    - 21 -
J-A09027-17


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.     Moury,   992   A.2d   at   170   (citing

Commonwealth v. Mann, 820 A.2d 788 (Pa. Super. 2003)).                       In

Commonwealth v. Reeves, 778 A.2d 691 (Pa. Super. 2001), we

reaffirmed the principle articulated in Commonwealth v. Jarvis, 663 A.2d

790 (Pa. Super. 1995), wherein this Court observed that, although

Pa.R.Crim.P. 1410 (presently Rule 720) characterizes post-sentence motions

as optional, the rule expressly provides that only issues raised in the trial

court will be deemed preserved for appellate review. Reeves, 778 A.2d at

692. Applying this principle, the Reeves Court held that an objection to a

discretionary aspect of a sentence is waived if not raised in a post-sentence

motion or during the sentencing proceedings.     Id. at 692-693.     See also

Commonwealth v. Parker, 847 A.2d 745 (Pa. Super. 2004) (holding

challenge to discretionary aspect of sentence was waived because appellant

did not object at sentencing hearing or file post-sentence motion);

Commonwealth v. Petaccio, 764 A.2d 582 (Pa. Super. 2000) (same).

     Further, we are mindful that a failure to include the Pa.R.A.P. 2119(f)

statement does not automatically waive an appellant’s discretionary aspects

of sentencing argument.      Commonwealth v. Roser, 914 A.2d 447, 457


                                      - 22 -
J-A09027-17


(Pa. Super. 2006). However, we are precluded from reaching the merits of

the claim when the Commonwealth lodges an objection to the omission of

the statement.   Id. (quoting Commonwealth v. Love, 896 A.2d 1276,

1287 (Pa. Super. 2006)). See also Commonwealth v. Farmer, 758 A.2d

173, 182 (Pa. Super. 2000) (observing that we may not reach the merits of

discretionary aspects of sentencing claims where the Commonwealth has

objected to the omission of a Pa.R.A.P. 2119(f) statement and finding the

issue to be waived). 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 a discretionary sentencing claim if

Commonwealth does not object to the appellant’s failure to comply with

Pa.R.A.P. 2119(f)).

     Herein, the first requirement of the four-part test is met because

Appellant timely brought this appeal following the denial of his post-sentence

motion.   However, our review of the record reflects that Appellant did not

meet the second requirement because he did not include a challenge to the

discretionary aspects of his sentence in his post-sentence motion or at the

time of sentencing.   Post-Sentence Motion, 1/11/16 (Record Entry #50).

Likewise, the third requirement is not met. Specifically, Appellant failed to

include in his appellate brief the necessary separate concise statement of the

reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f).

The Commonwealth is aware of the defect in Appellant’s brief and has


                                    - 23 -
J-A09027-17


objected to this omission by Appellant.   Commonwealth’s Brief at 44-45.

Therefore, Appellant’s issue is waived, and we are precluded from

addressing the merits of his claim on appeal.   Accordingly, we affirm the

judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/2017




                                 - 24 -
