J-S18018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    PATRICK LHERISON                           :
                                               :
                       Appellant               :   No. 743 MDA 2018

             Appeal from the Judgment of Sentence March 13, 2018
    In the Court of Common Pleas of Lackawanna County Criminal Division at
                       No(s): CP-35-CR-0000572-2017


BEFORE:      BOWES, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY NICHOLS, J.:                     FILED: SEPTEMBER 17, 2019

        Appellant Patrick Lherison appeals from the judgment of sentence

imposed following his bench trial convictions for two counts each of possession

of a controlled substance, possession of a controlled substance with intent to

deliver (PWID), and possession of drug paraphernalia, and one count each of

delivery of a controlled substance and criminal use of communication facility.1

Appellant challenges the Commonwealth’s compliance with the mandates of

the Wiretapping and Electronic Surveillance Control Act2 (Wiretap Act), the

legality of the warrantless search of his vehicle, and the sufficiency and weight

of the evidence supporting his convictions. We affirm.
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1 35 P.S. § 780-113(a)(16), (30), (32), and 18 Pa.C.S. § 7512(a),
respectively.

2   18 Pa.C.S. §§ 5701-5782.
J-S18018-19



     The trial court set forth the relevant facts of this appeal as follows:

     At trial, Detective Harold Zech . . . testified that on March 7, 2017,
     he and Lackawanna County Detective John Munley . . . met with
     a Confidential Informant [(CI)] regarding the sale of heroin and
     cocaine by an individual known as “Cali,” who was later identified
     as [Appellant]. [Detective] Zech further testified that the CI
     informed him that “Cali” commonly traveled to the drug
     transactions in a black Jeep with his girlfriend . . . . The CI
     described [Appellant] as a black male, with short cropped hair,
     light facial hair, approximately 5’9” tall and a medium build. At
     trial, the CI explained that she informed the detectives that
     [Appellant] was her drug dealer and she could contact him by cell
     phone and arrange to purchase heroin, similar to the previous
     controlled buys she had completed while working with Detectives
     Zech and Munley.

     The CI further testified that after she was consensualized by
     Assistant District Attorney [(ADA)] Michael Ossont, she called
     [Appellant] and arranged for him to come to her hotel room to sell
     her heroin. While waiting for [Appellant] to arrive, [Detective]
     Zech thoroughly searched [the CI] and her hotel room for money
     and contraband, but neither were found. The CI explained that
     she was provided with $200 of pre-recorded money and outfitted
     with a covert audio recording device. Subsequently, detectives
     testified they established surveillance around the CI’s hotel.

     Afterwards, [Detective] Zech testified that he observed
     [Appellant] arrive at the CI’s hotel in his black Jeep, exit the
     vehicle with a plastic shopping bag, and proceed to enter the CI’s
     hotel room.     After [Appellant] entered the hotel room, the
     detectives could hear the transaction between the CI and
     [Appellant], via the covert audio recording device. Subsequently,
     [Appellant] exited the CI’s hotel room with the same plastic bag
     and entered his Jeep. Thereafter, the CI met with [Detective]
     Zech and provided 25 blue glassine bags of heroin. The CI
     explained that [Appellant] . . . carried the heroin in his plastic bag.
     Accordingly, officers conducted a . . . traffic stop on [Appellant’s]
     vehicle.

     Immediately, officers located the plastic bag near [where
     Appellant’s] feet [had been] in his vehicle. Detective Munley
     searched the bag and recovered $1,200 in U.S. currency, 459

                                      -2-
J-S18018-19


      bags of heroin, and 84 grams of cocaine. Officers also conducted
      a search incident to arrest and located the target cell phone, as
      well as the pre-recorded serialized money previously provided to
      the CI.

      In addition, [Detective] Munley searched [Appellant’s] vehicle and
      located a safe in the back seat. The safe contained 2,950 bags of
      heroin wrapped in brick form, $2,000 in U.S. currency, and a
      plastic pill bottle containing five (5) Xanax tablets and two (2)
      Clonazepam tablets. The vehicle search also yielded three digital
      scales, a grinder, empty glassine bags, rubber bands, spoons,
      measuring cups, and inositol powder, a cutting agent.

Trial Ct. Op., 9/27/18, at 4-6 (record citations omitted).

      On September 15, 2017, Appellant filed a motion to suppress physical

evidence. Appellant argued that the police conducted an illegal, warrantless

arrest without probable cause.     Appellant further argued that the police

conducted an illegal, warrantless search of his vehicle. Appellant concluded

that “any physical items seized from [Appellant’s] person and vehicle were

tainted due to improper police conduct[.]” Suppression Mot. 9/15/17, at 2

(unpaginated). In his brief in support of the suppression motion, Appellant

explained that he sought to challenge the Commonwealth’s compliance with

the mandates of the Wiretap Act. Specifically, Appellant disputed whether the

Commonwealth properly consensualized the CI.

      The trial court conducted a suppression hearing on October 25, 2017.

On November 27, 2017, the trial court denied Appellant’s suppression motion.

Following a bench trial, the trial court convicted Appellant of two counts each

of PWID, possession of a controlled substance, and possession of drug




                                     -3-
J-S18018-19



paraphernalia, and one count each of delivery of a controlled substance and

criminal use of communication facility.

      On February 21, 2018, Appellant filed a motion in arrest of judgment,

claiming that insufficient evidence supported his convictions.             Appellant

argued that the trial court erred in permitting the Commonwealth’s forensic

scientist, Lauren Force, to testify regarding the results of laboratory testing

on   the   drugs   seized    from   Appellant.      Appellant   insisted   that    the

Commonwealth       “never    produced    evidence     supporting   the     necessary

certifications for the lab and equipment used” to test the drugs.                 Mot.,

2/21/18, at 2 (unpaginated). In a separate motion in arrest of judgment also

filed on February 21, 2018, Appellant challenged the weight assigned to the

testimony from the CI.

      The trial court conducted a hearing on Appellant’s motions on February

28, 2018. In addition to his arguments in support of the motions, Appellant

asked the trial court to reconsider its suppression ruling. Appellant also raised

a new challenge to the testimony from Ms. Force:

      [Trial Counsel]: Your Honor, I think what [Appellant’s] indicating
      is that during the trial testimony, I believe the forensic chemist
      testified that she only measured a certain amount of the bags that
      were seized. And [Appellant’s] position is that unless she testified
      as to each of the bags as to what was in that particular bag and
      the weight, that that should not impact his sentencing from the
      terms of any type of quantity unless it was, you know, unless as
      I said each of the bags was established as being a controlled
      substance.

N.T. Hr’g., 2/28/18, at 7.



                                        -4-
J-S18018-19



       By order entered March 13, 2018, the trial court denied Appellant’s post-

trial requests for relief. That same day, the trial court sentenced Appellant to

an aggregate term of eleven to twenty-seven years’ imprisonment, followed

by sixteen years of special probation.

       Appellant timely filed post-sentence motions, which the trial court

denied on April 17, 2018.3         That same day, the trial court permitted trial

counsel to withdraw from representation. Prior to the appointment of new

counsel, Appellant timely filed a pro se notice of appeal on May 1, 2018. On

June 19, 2018, newly appointed counsel filed an entry of appearance in this

Court.

       Thereafter, Appellant filed a counseled Pa.R.A.P. 1925(b) statement.

The trial court filed a responsive opinion concluding (1) ADA Ossont provided

proper approval for the interception of communications between Appellant and

the CI; (2) the police possessed probable cause to arrest Appellant, and they


____________________________________________


3 The trial court notes that Appellant timely filed a motion for reconsideration
of sentence, and the court conducted a hearing on the motion on April 9, 2018.
Trial Ct. Op. at 7. The certified record, however, does not contain a copy of
the post-sentence motion or any transcript for the April 9, 2018 hearing.
Additionally, the criminal docket from the Court of Common Pleas does not list
the filing of the post-sentence motion, and our review of the sentencing
transcript reveals that Appellant did not make an oral motion following the
imposition of sentence.

Nevertheless, the record includes a rule, filed on March 26, 2018, issued to
show cause as to why the trial court should not grant the relief requested in
Appellant’s post-sentence motion. The record also includes an order denying
Appellant’s post-sentence motion on April 17, 2018. Significantly, this order
notified Appellant of his right to file a notice of appeal within thirty days.

                                           -5-
J-S18018-19



conducted a legal search of Appellant’s vehicle pursuant to the automobile

exception to the warrant requirement; (3) Appellant’s vague Rule 1925(b)

statement resulted in the waiver of his challenges to the weight and sufficiency

of the evidence; and (4) even if Appellant had not waived his weight and

sufficiency challenges, no relief is due.

      Appellant now raises four issues for our review:

      [1]. Whether the trial court erred when it denied Appellant’s
      omnibus pretrial motion to exclude/suppress evidence of the
      recorded in-person conversation between him and the [CI] on
      March 7, 2017 for the following reasons:

         [A.] It was not supported by reasonable grounds to suspect
         criminal activity as required by 18 Pa.C.S. § 5704;

         [B.] It is based upon a defective memorandum not signed
         by Assistant District Attorney Michael Ossont since the
         memorandum and testimony indicated that it was approved
         over the phone contrary to the requirements of the statute;

         [C.] The memorandum of approval states: “I, Mike Ossont .
         . . have reviewed the memorandum of Detective Harold
         Zech, dated 3/17/2017 . . .” but the detective’s
         memorandum is clearly dated 3/7/2017[;] thus, it appears
         that ADA Ossont did not have Detective Munley’s
         memorandum when he allegedly authorized the intercept[.]

      [2]. Whether the trial court erred when it denied Appellant’s
      omnibus motion to suppress the evidence seized from his person
      and his vehicle for the following reasons:

         [A.] The searches and seizures were without probable cause
         and without a lawfully issued search warrant or other legal
         justification; and

         [B.] The search and seizures were in violation of the U.S.
         Constitution Fourth Amendment and the Pennsylvania



                                      -6-
J-S18018-19


            [Constitution] Article I, [Section] 8’s prohibition against
            unreasonable searches and seizures.

       [3]. Whether the verdicts . . . were contrary to the weight of the
       evidence[.]

       [4]. Whether the verdicts . . . were supported by sufficient
       evidence[.]

Appellant’s Brief at 4-5 (full capitalization omitted).

       In his first issue, Appellant contends that the Commonwealth failed to

establish     “reasonable    grounds”      to   support   the   interception     of   his

communications with the CI. Id. at 23. Prior to obtaining authorization for

the interception, Appellant asserts that Detective Zech “failed to provide any

information [identifying Appellant] as being involved in the distribution of a

controlled substance.” Id. at 24. Appellant insists that Detective Zech “did

not state that the CI had purchased any controlled substances from Appellant

in the past,” and “did not state that the CI had provided in the past, reliable

and accurate information that led to the arrest and conviction of a drug

dealer.” Id.

       Further, Appellant       argues that ADA Ossont issued a defective

“memorandum of approval”4 to authorize the interception.              Id.      Appellant

emphasizes that the memorandum of approval was dated March 17, 2017,

which was ten days after the interception occurred. Id. at 25. Moreover,

____________________________________________


4 At the suppression hearing, the Commonwealth submitted into evidence
several forms memorializing the investigators’ compliance with the Wiretap
Act, including the memorandum of approval. See N.T. Suppression Hr’g.,
10/25/17, at 5. Although the record does not include these exhibits, Detective
Zech testified regarding the information contained within the forms.

                                           -7-
J-S18018-19



Appellant relies on Commonwealth v. Clark, 542 A.2d 1036 (Pa. Super.

1988), to support his assertion that the Commonwealth did not adequately

verify the CI’s consent to interception because ADA Ossont interviewed the CI

over the phone instead of conducting a face-to-face meeting. Id. at 26, 29.

Appellant concludes that the Commonwealth failed to comply with the

mandates of the Wiretap Act, and the trial court should have granted his

suppression motion. Id. at 29.

     We apply the following standard when reviewing the denial of a

suppression motion:

     [O]ur initial task is to determine whether the [trial court’s] factual
     findings are supported by the record.              In making this
     determination, we must consider only the evidence of the
     prosecution’s witnesses, and so much evidence of the defense that
     remains uncontradicted when fairly read in the context of the
     record as a whole. When the evidence supports the factual
     findings, we are bound by such findings; we may reverse only if
     the legal conclusions drawn therefrom are erroneous.

Commonwealth v. Bryant, 67 A.3d 716, 724 (Pa. 2013) (citation omitted).

     This Court has explained that the Wiretap Act

     is a pervasive scheme of legislation which suspends an individual’s
     constitutional rights to privacy only for the limited purpose of
     permitting law enforcement officials, upon a showing of probable
     cause, to gather evidence necessary to bring about a criminal
     prosecution and conviction. The statute sets forth clearly and
     unambiguously by whom and under what circumstances these
     otherwise illegal practices and their derivative fruits may be used.

Commonwealth v. Glass, 200 A.3d 477, 483 (Pa. Super. 2018) (citation

omitted), appeal denied, 5 MAL 2019 (Pa. filed July 2, 2019).




                                     -8-
J-S18018-19



     Nevertheless, the Wiretap Act provides the following exception, which

allows law enforcement to utilize wiretaps without obtaining prior judicial

approval when one of the parties to the conversation provides consent:

     § 5704. Exceptions to prohibition of interception and
         disclosure of communications

     It shall not be unlawful and no prior court approval shall be
     required under this chapter for:

                                 *    *    *

        (2) Any investigative or law enforcement officer or any
        person acting at the direction or request of an investigative
        or law enforcement officer to intercept a wire, electronic or
        oral communication involving suspected criminal activities,
        including, but not limited to, the crimes enumerated in
        section 5708 (relating to order authorizing interception of
        wire, electronic or oral communications), where:

                                 *    *    *

           (ii) one of the parties to the communication has given
           prior consent to such interception. However, no
           interception under this paragraph shall be made
           unless the Attorney General or a deputy attorney
           general designated in writing by the Attorney General,
           or the district attorney, or an assistant district
           attorney designated in writing by the district attorney,
           of the county wherein the interception is to be
           initiated, has reviewed the facts and is satisfied that
           the consent is voluntary and has given prior approval
           for the interception; however, such interception shall
           be subject to the recording and record keeping
           requirements of section 5714(a) (relating to recording
           of intercepted communications) and that the Attorney
           General, deputy attorney general, district attorney or
           assistant district attorney authorizing the interception
           shall be the custodian of recorded evidence obtained
           therefrom[.]



                                     -9-
J-S18018-19



18 Pa.C.S. § 5704(2)(ii).

      “In determining whether the approval of a consensual wiretap was

proper, this Court has determined that police officers must articulate

‘reasonable grounds’ for the monitoring and the . . . district attorney must

verify that that these reasonable grounds exist.”          Commonwealth v.

McMillan, 13 A.3d 521, 525 (Pa. Super. 2011) (citations omitted); see also

Commonwealth v. Taylor, 622 A.2d 329, 333 (Pa. Super. 1993) (explaining

that reasonable grounds existed to support a consensual wiretap where, prior

to the interception, the informant provided the police with “abundant”

information about his illegal dealings with the defendant, and the assistant

attorney general interviewed the informant to verify the existence of the

reasonable grounds).

      “The responsibilities outlined in the Act regarding the duties of the . . .

District Attorney or their designee are non-del[e]gable.” Clark, 542 A.2d at

1040. “Those persons responsible for authorizing interceptions under the Act

must personally review the facts, ascertain directly from the consenting party

the voluntariness of his or her consent and give prior approval to the

interceptions.” Id.

      Instantly, the trial court evaluated the suppression hearing record and

determined    that    the   Commonwealth’s       interception   of   Appellant’s

communications did not violate the Wiretap Act:

      Here, the CI informed [Detective] Zech that [Appellant] was her
      drug dealer and she could purchase heroin from him at . . . the


                                     - 10 -
J-S18018-19


       Econo Lodge.[5] The CI provided [Detective] Zech with a physical
       description of [Appellant] as well as his vehicle, a black Jeep. The
       CI explained that [Appellant] commonly used his Jeep to facilitate
       drug transactions with her and transport narcotics. The CI further
       explained that [Appellant] often travels with his girlfriend, a heroin
       user. The CI prefaced that [Appellant’s] cell phone number had a
       California area code and provided the number to [Detective] Zech.
       Based on this information, there was reasonable grounds to
       intercept communications between the CI and [Appellant].

                                       *       *    *

       [The c]ourt finds that ADA Ossont provided proper approval under
       [Section] 5704(2)(ii). . . . [Detective] Zech testified that he
       called ADA Ossont prior to the interception and explained to him
       the contents of the Officer’s Memorandum,[6] the basis for the
       investigation, the circumstances surrounding the case, what the
       detectives were looking to achieve by intercepting conversations
       between the CI and [Appellant], where it was going to take place,
       the time period estimated for the investigation, and the equipment
       the detectives would use to intercept the conversations.

       Moreover, an Assistant District Attorney’s determination of the
       voluntariness of the [CI’s] consent, and over the phone approval
       does not violate the requirements of Section 5704(2)(ii).

                                       *       *    *

       ADA Ossont was sufficiently apprised of the contents of [the
       detective’s] Memorandum.     A common sense, non-technical
       reading of the Memorandum of Approval clearly indicates that the
       defect in the dates was an immaterial clerical error. As stated

____________________________________________


5 Detective Zech also testified that he had worked with the CI on prior
occasions, but he could not remember the precise number of drug
investigations involving the CI. See N.T. Suppression Hr’g at 15.

6 The Commonwealth also submitted the officer’s memorandum at the
suppression hearing. See N.T. Suppression Hr’g at 5. Detective Zech testified
that the officer’s memorandum “outlines the investigation as to what we’re
looking to have take place.” Id. at 18.



                                           - 11 -
J-S18018-19


       above, ADA Ossont was provided with the relevant information
       surrounding the investigation.[7]

Trial Ct. Op. at 8-11 (record citations omitted).     Our review of the record

supports the trial court’s findings. See Bryant, 67 A.3d at 724.

       Further, Appellant’s reliance on Clark is misplaced. In Clark, this Court

emphasized that “the Assistant District Attorneys authorized to approve the

interceptions did not meet with or speak to [the informant] prior to obtaining

his consent for each new period of surveillance.” Clark, 542 A.2d at 1039;

see also Commonwealth v. Adams, 524 A.2d 1375 (Pa. Super. 1987)

(approving of a procedure where a deputy attorney general conducted a

telephone interview with an informant to determine the voluntariness of his

consent to a second ten-day period of interceptions). Unlike Clark, Detective

Zech’s testimony definitively established that ADA Ossont “had an in-depth

interview over the phone” with the CI to review the issue of consent. N.T.

Suppression Hr’g at 20.        Therefore, the Commonwealth complied with the

mandates of the Wiretap Act, and Appellant is not entitled to relief on his first

claim. See Bryant, 67 A.3d at 724; 18 Pa.C.S. § 5704(2)(ii).

       In his second issue, Appellant contends that the police conducted an

illegal warrantless search of his vehicle after they stopped him in the parking



____________________________________________


7 At the suppression hearing, Detective Zech confirmed that he was the
individual who wrote the incorrect date on the memorandum of approval, and
the date he should have written was March 7, 2017. See N.T. Suppression
Hr’g at 21-22.



                                          - 12 -
J-S18018-19



lot of the CI’s hotel.8 Appellant’s Brief at 30. Appellant asserts that the police

immediately retrieved two items from his vehicle (1) the plastic bag on the

floor in the front of the passenger compartment; and (2) the safe in the rear

of the passenger compartment. Id. at 31-32. To the extent the search could

be justified as a search incident to arrest, Appellant argues that he “was

outside of the vehicle, and handcuffed and otherwise detained.” Id. at 31.

Appellant maintains that “there was no danger that he could retrieve potential

weapons or destroy evidence that may have been inside” the bag and safe,

and the police should have obtained a warrant before retrieving these items.

Id. at 31.

       Regarding the automobile exception to the warrant requirement,

Appellant     acknowledges        that     our     Supreme   Court’s   decision   in

Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), establishes “that the

current standard that applies in a case of search and seizure of an automobile

and its occupants is the existence of probable cause.” Appellant’s Brief at 33.

Appellant insists, however, that probable cause did not exist under the totality

of the circumstances in this case, because “there was no information provided

by the Commonwealth that the CI was reliable.”               Id. at 34.   Appellant




____________________________________________


8 In his statement of questions presented, Appellant frames this issue as a
challenge to both the search of his person and the search of his vehicle. See
Appellant’s Brief at 4. In the argument section, however, Appellant focuses
only on the search of his vehicle. Id. at 30-35. Accordingly, we concentrate
our analysis on the legality of the vehicle search.

                                          - 13 -
J-S18018-19



concludes that the police illegally searched his vehicle, and the trial court erred

when it denied his suppression motion. Id. at 35.

      “The Fourth Amendment, by its text, has a strong preference for

searches conducted pursuant to warrants.” Commonwealth v. Kemp, 195

A.3d 269, 275 (Pa. Super. 2018) (citation omitted).         In Gary, however, a

majority of the Pennsylvania Supreme Court adopted the federal automobile

exception to the warrant requirement:

      Therefore, we hold that, in this Commonwealth, the law governing
      warrantless searches of motor vehicles is coextensive with federal
      law under the Fourth Amendment.            The prerequisite for a
      warrantless search of a motor vehicle is probable cause to search;
      no exigency beyond the inherent mobility of a motor vehicle is
      required. The consistent and firm requirement for probable cause
      is a strong and sufficient safeguard against illegal searches of
      motor vehicles, whose inherent mobility and the endless factual
      circumstances that such mobility engenders constitute a per se
      exigency allowing police officers to make the determination of
      probable cause in the first instance in the field.

Gary, 91 A.3d at 138.

      “The level of probable cause necessary for warrantless searches of

automobiles is the same as that required to obtain a search warrant.”

Commonwealth v. Lechner, 685 A.2d 1014, 1016 (Pa. Super. 1996)

(citation omitted); accord Gary, 91 A.3d at 104. “Probable cause does not

demand the certainty we associate with formal trials. Rather, a determination

of probable cause requires only that the totality of the circumstances

demonstrates a fair probability that contraband or evidence of a crime will be




                                      - 14 -
J-S18018-19



found in a particular place.” Commonwealth v. Manuel, 194 A.3d 1076,

1081 (Pa. Super. 2018) (en banc) (citations omitted).

      “An officer’s determination of probable cause based upon information

received from a confidential informant depends upon the informant’s reliability

and basis of knowledge viewed in a common sense, non-technical manner.”

Commonwealth v. Koonce, 190 A.3d 1204, 1212 (Pa. Super. 2018)

(citations omitted). “Information provided by a CI ‘may constitute probable

cause where police independently corroborate the tip, or where the informant

has provided accurate information of criminal activity in the past, or where

the informant himself participated in the criminal activity.’”    Id. (citation

omitted) (emphasis added).

      Instantly, the trial court determined that probable cause existed to

support the search at issue:

      Here, a CI told [Detective] Zech that [Appellant] was her drug
      dealer, and provided a physical description of [Appellant], his
      vehicle, as well as his girlfriend, who he commonly travels with.
      After providing consent to be intercepted and recorded, the CI
      called [Appellant] on his cell phone. [Detective] Zech was present
      during this call and learned that [Appellant] would be arriving at
      the CI’s hotel room at the Econo Lodge in approximately 45
      minutes. [Detective] Zech conducted a thorough search of the
      CI’s hotel room with negative results. Next, the CI was outfitted
      with a covert audio recording device and provided buy money to
      use in the transaction.          Subsequently, officers observed
      [Appellant] arrive in a black Jeep, exit the vehicle with a plastic
      bag, and enter the CI’s hotel room. Inside the hotel room,
      [Appellant] sold the CI 25 bags of heroin.           Following the
      transaction, the CI immediately met with [Detective] Zech and
      provided him with the heroin . . . .

Trial Ct. Op. at 14-15 (record citations omitted).


                                    - 15 -
J-S18018-19



      Under the totality of these circumstances, including the CI’s participation

in the criminal activity and subsequent statements to the police, probable

cause existed to support the search of Appellant’s vehicle. See Manuel, 194

A.3d at 1081; Koonce, 190 A.3d at 1212. Consequently, the police conducted

a legal search pursuant to the automobile exception of the warrant

requirement, and Appellant is not entitled to relief on his second claim. See

Gary, 91 A.3d at 138.

      In his third and fourth issues, Appellant reiterates his prior conclusion

that the trial court should have granted his suppression motion, because the

police failed to investigate “beyond what the CI provided and because of the

illegal interception of audio from the device placed on the CI.” Appellant’s

Brief at 37. “If this evidence is suppressed, Appellant argues that the guilty

verdicts were against the weight of the evidence.”       Id.   Appellant further

argues:

      [N]one of the officers ever saw an exchange of drugs between him
      and the CI. [Appellant] contends that the verdicts were not
      supported by sufficient evidence. This is especially true since the
      intercepted conversations and the evidence derived from those
      conversations should be suppressed, as argued supra.

Id. at 40.

      Additionally, Appellant refers to the lab report Ms. Force prepared in

conjunction with the forensic testing of the controlled substances. Id. at 38.

Appellant contends the report was fraught with errors, including (1) reliance

on the “gross” weight of the packaging materials; (2) failure to extract cutting

agents from the controlled substances; and (3) establishing a “threshold of

                                     - 16 -
J-S18018-19



uncertainty [at] plus or minus .01 grams, yet . . . each bag tested weighed

less than the measurement of uncertainty.”         Id.   Appellant maintains that

these errors, combined with “the Commonwealth’s failure to introduce

evidence . . . that the lab and testing equipment was properly certified,” casts

doubt upon “any testimony or evidence regarding whether an item contained

a controlled substance . . . .” Based upon the foregoing, Appellant concludes

that the Commonwealth presented insufficient evidence to support his

convictions, and that the convictions are against the weight of the evidence.

Id. at 39-40.

       Instantly, to the extent Appellant’s weight and sufficiency claims are

based on his belief that trial court should have granted his suppression motion,

we have already concluded that Appellant’s suppression issues warrant no

relief.9   Regarding Appellant’s allegations of errors associated with the lab

report and testing of the controlled substances, Appellant failed to raise these

specific arguments in his Rule 1925(b) statement, and they are now waived.10
____________________________________________


9 Although Appellant also contends that the police officers did not actually
witness the drug transaction, we note that the CI testified at trial and
confirmed that Appellant entered her hotel room on the day in question and
provided heroin in exchange for the prerecorded buy money. See N.T. Trial,
11/27/17, at 30-31.

10Appellant’s Rule 1925(b) statement presented his weight and sufficiency
challenges as follows:

       Whether the verdicts on Count I: [PWID], 35 [P].S. § 780-
       113(a)(30), on Count II; [PWID], 35 [P].S. § 780-113(a)(30); on
       Count III: Delivery of a Controlled Substance, 35 [P].S. § 780-



                                          - 17 -
J-S18018-19



See Commonwealth v. Freeman, 128 A.3d 1231, 1248-49 (Pa. Super.

2015) (holding that appellant waived his challenge to the weight of the

evidence where his Rule 1925(b) statement, among other things, failed to

offer specific reasons as to why the verdicts were against the weight of the

evidence); Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013)

(reiterating that an appellant’s Rule 1925(b) statement must state with

specificity the element or elements upon which the appellant alleges that the

evidence was insufficient). Accordingly, we affirm the judgment of sentence.

       Judgment of sentence affirmed.




____________________________________________


       113(a)(30); on Count VI: Possession of a Controlled Substance,
       35 [P].S. § 780-113(a)(16); on Count VII: Possession of a
       Controlled Substance, 35 [P].S. § 780-113(a)(16); on Count VIII:
       Drug Paraphernalia, 35 [P].S. § 780-113(a)(32); Count IX: Drug
       Paraphernalia, 35 [P].S. § 780-113(a)(32) and Count X: Criminal
       Use of a Communication Facility, 18 Pa.C.S.A. § 7512(a) were
       contrary to the weight of the evidence?

       Whether the verdicts on Count I: [PWID], 35 [P].S. § 780-
       113(a)(30), on Count II; [PWID], 35 [P].S. § 780-113(a)(30); on
       Count III: Delivery of a Controlled Substance, 35 [P].S. § 780-
       113(a)(30); on Count VI: Possession of a Controlled Substance,
       35 [P].S. § 780-113(a)(16); on Count VII: Possession of a
       Controlled Substance, 35 [P].S. § 780-113(a)(16); on Count VIII:
       Drug Paraphernalia, 35 [P].S. § 780-113(a)(32); Count IX: Drug
       Paraphernalia, 35 [P].S. § 780-113(a)(32) and Count X: Criminal
       Use of a Communication Facility, 18 Pa.C.S.A. § 7512(a) were
       supported by sufficient evidence?

Rule 1925(b) Statement, 8/6/18, at 2 (unpaginated).

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J-S18018-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/17/2019




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