J-S77023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
                  v.                    :
                                        :
                                        :
LEONARD OMAR RILEY                      :
                                        :
              Appellant                 :   No. 294 MDA 2017


         Appeal from the Judgment of Sentence January 11, 2016
   In the Court of Common Pleas of Dauphin County Criminal Division at
                     No(s): CP-22-CR-0005649-2014


BEFORE:    BENDER, P.J.E., LAZARUS, J., and STEVENS*, P.J.E.

MEMORANDUM BY LAZARUS, J.:                      FILED JANUARY 19, 2018

     Leonard Omar Riley appeals from the judgment of sentence entered in

the Court of Common Pleas of Dauphin County. We affirm.

     The trial court summarized the facts as follows:

     On June 4, 2014, Detective Nicholas Licata of the City of
     Harrisburg Bureau of Police Vice Unit was searching for [Riley],
     [who was] wanted by Pennsylvania State Police for absconding
     from supervision. Detective Lictata located [Riley’s] vehicle, a
     black Chrysler 300, parked at the 1400 Block of Shoop Street in
     Harrisburg.    A person Detective Licata believed was [Riley]
     entered the vehicle, then made an illegal three point turn on a
     one-way street.      Assisted by members of the Pennsylvania
     Attorney General’s Office Bureau of Narcotics Investigation, [a]
     police vehicle blocked the Chrysler 300 and detained the driver,
     identified as [Riley].

Trial Court Opinion, 5/25/17, at 2-3 (citations omitted). Riley was arrested

pursuant to a warrant. A search incident to that arrest revealed a Newport

cigarette box containing .64 grams of cocaine in a corner-tie bag and $115 in

____________________________________
* Former Justice specially assigned to the Superior Court.
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cash. A search warrant was issued to retrieve the text messages on the cell

phone found on Riley’s person.

      Riley was tried before the Honorable John F. Cherry and convicted of

possession with intent to deliver (PWID) (cocaine), 35 P.S. § 780-113(a)(30),

and possession of drug paraphernalia, 35 P.S. 780-113(a)(32).           The court

sentenced him to 39-78 months’ incarceration.

      On appeal, Riley argues the verdict was against the weight of the

evidence with respect to his PWID conviction and the court’s sentence was an

abuse of discretion. These claims are meritless.

      The decision of whether to grant a new trial on the basis of a
      challenge to the weight of the evidence is necessarily committed
      to the sound discretion of the trial court due to the court’s
      observation of the witnesses and the evidence. A trial court
      should award a new trial on this ground only when the verdict is
      so contrary to the evidence as to shock one’s sense of justice. Our
      review on appeal is limited to determining whether the trial court
      abused its discretion in denying the motion for a new trial on this
      ground.

Commonwealth v. Chamberlain, 30 A.3d 381, 396 (Pa. 2011) (citations

omitted).     “Not merely an error in judgment, an abuse of discretion occurs

when the law is overridden or misapplied, or the judgment exercised is

manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will,

as shown by the evidence on record.” Commonwealth v. Handfield, 34

A.3d 187, 208 (Pa. Super. 2011) (quoting Commonwealth v. Cain, 29 A.3d

3, 6 (Pa. Super. 2011)). See Commonwealth v. Clay, 64 A.3d 1049, 1055

(Pa. 2013).


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       In support of his weight of the evidence claim, Riley contends that he

testified that the packaged cocaine in his possession was for his personal use,

that the amount was consistent with personal use, that there was no evidence

that he was engaged in drug-dealing activity on the date he was arrested, and

that there was conflicting evidence with respect to his employment or lack

thereof. Riley also argues that no weight should have been given to the text

messages referencing drug dealing activity that were found on the cell phone

in his possession. Appellant’s Brief, at 17.

       The court heard testimony from Chief Detective John Goshert of the

Dauphin County Criminal Investigation Division, who was qualified as an

expert in drug trafficking, and Detective Nicholas Licata, the arresting officer.

Both testified that the packaging of the cocaine was not consistent with

personal use, but instead was consistent with “street level drug dealing.” N.T.

Trial, 1/11/16, at 18, 31, 37-38. Further, the cellphone text messages that

were admitted identified Riley, by his middle name (Omar), and contained

messages involving drug-related conversations with respect to meeting for

and asking for drugs.1 The trial court, sitting as finder of fact, referenced the

findings it made on the record at the conclusion of trial:

       [I]t has become clear to this Court through all the testimony here
       that it’s well beyond a reasonable doubt that the drugs possessed
       on that day were possessed with the intent to deliver. The phone
____________________________________________


1The issue of authentication of the text messages was not raised at trial. See
Pa.R.A.P. 302(a); see also Commonwealth v. Koch, 39 A.3d 996 (Pa.
Super. 2011), affirmed by equally divided court, 106 A.3d 705 (Pa. 2014);
Pa.R.E. 901.

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      texting backs that up, the messages that were found on the phone
      that was in his possession that he admits he had prior to June 4th,
      which have drug trafficking messages on them. We find the
      evidence is overwhelming, and we find him guilty of possession
      with intent to deliver crack cocaine and unlawful possession of
      drug paraphernalia, which was the box that the drugs were
      contained in and the plastic baggy.

N.T. Trial, 1/11/16, at 58-59.

      The trial court, sitting as finder of fact, evaluated the evidence,

determined the credibility of the witnesses and, when assessing the weight of

the evidence, believed the evidence presented by the prosecution and

determined that the evidence overwhelmingly proved that Riley possessed the

cocaine with the intent to deliver. See id. at 56-58. It is not this Court’s

function to reassess the credibility of the witnesses or reweigh the evidence.

We conclude, therefore, that the court did not abuse its discretion when it

denied Riley’s weight of the evidence claim. See Chamberlain, 30 A.3d at

396 (“A motion alleging the verdict was against the weight of the evidence

should not be granted where it merely identifies contradictory evidence

presented by the Commonwealth and the defendant.”).

      Next, Riley argues his sentence of 18 to 36 months was excessive and

an abuse of discretion. He acknowledges that the sentence is within the

sentencing guidelines, but states that application of the guidelines is

unreasonable given his “history and background[,]” and that the court

“focused solely on the nature of the criminal conduct[.]” Appellant’s Brief, at

14, Pa.R.A.P. 2119(f) Statement.




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     Challenges to the discretionary aspects of sentencing do not
     entitle an appellant to review as of right. Commonwealth v.
     Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
     challenging the discretionary aspects of his sentence must invoke
     this Court’s jurisdiction by satisfying a four-part test:

        We 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).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006). Riley has

complied with the first three requirements of the four-part test.      We find,

however, that he has failed to raise a substantial question that the sentence

imposed was inappropriate under the Sentencing Code.

      The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825,

828 (Pa. Super. 2007). A substantial question exists “only when the appellant

advances a colorable argument that the sentencing judge’s actions were

either: (1) inconsistent with a specific provision of the Sentencing Code; or

(2) contrary to the fundamental norms which underlie the sentencing

process.” Sierra, supra at 912–13.

     “[O]rdinarily, a claim that the sentencing court failed to consider or

accord proper weight to a specific sentencing factor does not raise a

substantial question.” Commonwealth v. Berry, 785 A.2d 994, 996-97 (Pa.

Super. 2001) (internal citation omitted) (emphasis in original).    See also

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Commonwealth v. McKiel, 629 A.2d 1012 (1993) (allegation that

sentencing court “failed to consider” or “did not adequately consider” certain

factors does not raise substantial question). Such a challenge goes to the

weight accorded the evidence and will not be considered absent extraordinary

circumstances. McKiel, 629 A.2d at 1013. See Commonwealth v. Cannon,

954 A.2d 1222, 1228–29 (Pa. Super. 2008) (claim that trial court failed to

consider defendant's rehabilitative needs, age, and educational background

did not present substantial question); Commonwealth v. Wellor, 731 A.2d

152, 155 (Pa. Super. 1999) (reiterating allegation that sentencing court “failed

to consider” or “did not adequately consider” certain factors generally does

not raise substantial question). We conclude, therefore, that Riley has failed

to raise a substantial question that the sentence imposed was inappropriate

under the Sentencing Code.2
____________________________________________


2Even were we to reach the merits of Riley’s sentencing claim, he would not
be entitled to relief. The record belies Riley’s claim that the court failed to
consider his history and background. Judge Cherry stated on the record that
he has “known this young man for many, many years,” and that he had “a
serious past.” N.T. Trial, 1/11/16, at 58, 60. The court stated:

       You already have a prior record score of 5, and a felony drug
       conviction and other felony offenses. Escaping. You have an
       escape, manufacturing, delivery, escape. And you already pled
       guilty to criminal conspiracy to manufacture a counterfeit
       controlled substance. You have a record of flight to avoid
       apprehension where you got 12 months’ probation. Everything
       that’s indicated here indicates that you have continued a life of
       crime. Now we go back to 2005, where I sentenced you;
       possession with intent to deliver, escape, resisting arrest. Those
       were all probationary sentences. You’ve already done four to



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       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/19/2018




____________________________________________


       eight years in a state penitentiary for firearms, firearms carrying
       without a license, recklessly endangering another person. It’s sad
       to watch all of this.

Id. at 60-61.       Clearly, the court was well aware of Riley’s history and
background.


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