J-S47030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LEON WILLIAM HOLLY, JR.

                            Appellant                  No. 10 MDA 2016


          Appeal from the Judgment of Sentence November 30, 2015
              In the Court of Common Pleas of Columbia County
             Criminal Division at No(s): CP-19-CR-0000840-2013


BEFORE: SHOGAN, J., LAZARUS, J., and JENKINS, J.

JUDGMENT ORDER BY JENKINS, J.:                          FILED JULY 28, 2016

        Leon William Holly, Jr. (“Appellant”) appeals from the judgment of

sentence entered in the Columbia County Court of Common Pleas following

his bench trial convictions for possession with intent to deliver (“PWID”) and

possession of marijuana.1 We affirm.

        The relevant facts and procedural history of this appeal are as follows.

On October 26, 2015, Appellant waived his right to a jury trial, and the court

conducted a bench trial. Contance Warren, Nancy Engel, and Officer Bradley

Sharrow testified for the Commonwealth. According to their testimony, Ms.

Warren and Ms. Engel cooperated with Officer Sharrow and acted as

confidential informants (“CIs”) to conduct controlled purchases of marijuana
____________________________________________


1
    35 P.S. § 780-113(a)(30) and (16), respectively.
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from Appellant on February 4, 2013, June 6, 2013 and August 9, 2013.

N.T., 10/25/2015, at 14, 30, 31, 34, 66.     Appellant and his sister, Maliea

Fishburn, testified for the defense. According to their testimony, Appellant

did not sell any marijuana to the CIs. Id. at 72, 79. Appellant and his sister

testified that Appellant and the CIs were friends who spoke on the dates in

question, but their neighbor, Glenda Fatzinger, sold the marijuana to the

CIs. Id. at 72, 74, 79, 95.

      The trial court convicted Appellant of three counts of PWID and three

counts of possession of marijuana.       On November 30, 2015, the court

sentenced Appellant to 2-7 months’ incarceration, plus 20 hours of

community service, and granted him automatic and immediate work release

eligibility. Appellant did not file post-sentence motions. On December 30,

2015, Appellant timely filed a notice of appeal. Both Appellant and the trial

court complied with Pa.R.A.P. 1925.

      Appellant raises the following issue for our review:

         WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
         DETERMINING THE COMMONWEALTH’S WITNESSES TO BE
         CREDIBLE   WHERE   THEIR   TESTIMONY   WAS   SO
         UNRELIABLE AND UNBELIEVABLE AS TO RENDER THE
         VERDICT BASED THEREON AS PURE CONJECTURE[?]

Appellant’s Brief at 2.

      Appellant claims the “weight of the evidence presented at trial is

insufficient to support the verdict.” Appellant’s Brief at 7. Appellant argues

the trial court erred by choosing to believe the testimony of the



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Commonwealth’s witnesses instead of the testimony of himself and his

sister. Thus, he concedes the evidence was sufficient to support the court’s

finding, but challenges the weight of the evidence.

      The relevant rule of criminal procedure provides:

         Rule 607. Challenges to the Weight of the Evidence

         (A) A claim that the verdict was against the weight of the
         evidence shall be raised with the trial judge in a motion for
         a new trial:

         (1) orally, on the record, at any time before sentencing;

         (2) by written motion at any time before sentencing; or

         (3) in a post-sentence motion.

Pa. R. Crim. P. 607.

      Appellant failed to raise his challenge to the weight of the evidence

orally before sentencing, by a written motion before sentencing, or in a post

sentence motion.       We find this claim is waived for failing to raise it first

before the trial court. See Commonwealth v. Wilson, 825 A.2d 710, 714

(Pa.Super.2003) (“A challenge to the weight of the evidence must first be

raised in the trial court in order for it to be the subject of appellate review.”).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/28/2016

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