J-S66018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

TONY SYFEE BARNES

                            Appellant                     No. 4 WDA 2015


      Appeal from the Judgment of Sentence entered September 12, 2014
                 In the Court of Common Pleas of Blair County
               Criminal Division at No: CP-07-CR-0002445-2013


BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                               FILED MARCH 8, 2016

        Appellant Tony Syfee Barnes appeals from the September 12, 2014

judgment of sentence entered by the Court of Common Pleas of Blair County

(“trial court”), following a jury trial that resulted in convictions for

possession with the intent to deliver a controlled substance (PWID), 35 P.S.

§ 780-113(a)(30), possession of a controlled substance, 35 P.S. § 780-

113(a)(16), and criminal use of a communication facility, 18 Pa.C.S.A. §

7512(a). Upon review, we affirm.

        The facts and procedural history of this case are undisputed.      On

October 31, 2013, Appellant was charged with the foregoing offenses. The

affidavit of probable cause accompanying the complaint provided in part:

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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            On 10-30-13 [confidential informant (CI)] contacted
     [Officer Christopher Moser, Altoona Police Department (APD),]
     and stated he was approached by a black male who asked him if
     he knew anyone that used heroin and the CI told the black male
     that he would make some phone calls for him. The black male
     told the CI that he would sell (14) packets of heroin for $200.00.
     The black male gave the CI his cellular phone number, 267-469-
     4382 and told the CI that his name was Maxi. The CI told Maxi
     he would call him when he was with his guy. The CI told Maxi
     that his guy was at work, but would be getting off shortly.

           [Officer Moser] briefed at APD with other officers for a
     [b]uy [b]ust on Maxi. [Officer Moser] met with Sgt. Jones, Det.
     Brandt and Ptlms Pittman, Swope, Roesch, Syner and Lutz. The
     CI met at APD with officers and was strip searched at 2045 hrs
     by Ptlm Pittman. The search was negative for drugs and/or
     monies. Sgt. Jones pre-recorded $200.00 in task force funds
     and retained the money on his person.

          Sgt. Jones transported the CI to the 1200 [block] of 11th
     Ave. Other officers maintained cover/surveillance positions.

           At 2113 hrs the CI called Maxi in the presence of Sgt.
     Jones. The CI told Maxi that he had “2,” meaning $200.00 and
     asked him to meet him at the Post Office.

            At 2137 hrs Ptlms Snyder and Roesch observed Maxi
     walking towards the meet [sic] location. Maxi then turned on
     Green Ave. and appeared to be waiting.           [Officer Moser]
     informed Sgt. Jones of Maxi’s location. At 2138 hrs the CI exited
     Sgt. Jones’ vehicle and met with Maxi. Sgt. Jones retained the
     task force funds. Maxi and the CI then met with Sgt. Jones. The
     CI got into the vehicle and introduced Maxi and Sgt. Jones. Maxi
     looked at Sgt. Jones and asked to see his [identification]. Sgt.
     Jones told Maxi that he didn’t have his ID because he just got off
     work. The CI told Maxi that Sgt. Jones had the money, but if he
     wasn’t comfortable he could walk away. Maxi told Sgt. Jones he
     was good and didn’t deal with him. Maxi walked away from the
     location.

           At 2140 hrs the CI called Maxi and said that it was ok for
     the CI to meet with Maxi if he felt more comfortable that way.
     The CI told Maxi that Sgt. Jones was cool and he just wanted to
     get high. Maxi agreed to meet the CI on the 1200 [block] of 14th
     Ave.

           Sgt. Jones drove the CI to the 1200 [block] of 14 th Ave.
     Sgt. Jones gave the CI the $200.00 in task force funds. The CI
     exited the vehicle and met with Maxi. At 2159 hrs the CI
     returned to Sgt. Jones’ vehicle and gave him the heroin. Sgt.
     Jones advised that he had (14) packets of heroin in his
     possession. Officers lost sight of Maxi as he went into an
     apartment building in the 1200 [block] of 14th Ave.


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              Sgt. Jones transported the CI back to APD. At 2205 hrs
        Sgt. Jones strip searched the CI with negative findings for drugs
        and/or monies. Officers maintained surveillance and waited to
        arrest Maxi for the delivery. Sgt. Jones and the CI then returned
        to the delivery location to assist in identifying Maxi.

               At 2251 hrs [Officer Moser] and Det. Brandt observed Maxi
        walk south across 14th Ave. and continue between the houses.
        The CI and Sgt. Jones confirmed Maxi’s identity and arrest
        officers moved to take him into custody.

               Maxi was identified as [Appellant] via a PA identification
        card. [Appellant] was searched incident to arrest. Ptlm Swope
        located $180.00 of the $200.00 in buy money in [Appellant’s]
        right front pants pocket. This was later confirmed at APD by
        Sgt. Jones and [Officer Moser]. [Appellant] also had a cellular
        telephone on his person, assigned cellular phone number 267-
        469-4382. Officer also located an AMTRAK train ticket dated
        October 30, 2013 at 12:42 PM. The ticket was for Philadelphia
        to Altoona. [Appellant] was transported to APD.

              Ptlm Pittman handled all evidence in regards to this arrest.
        The (14) wax packets of heroin were blue double sealed baggies
        with a Tiger logo. At 2359 hrs Ptlm Pittman conducted a field
        test on a portion of the heroin with a positive response for the
        same.

Affidavit of Probable Cause, 10/31/13.           Prior to trial, on June 13, 2014,

Appellant filed a motion in limine, requesting, among other things, the

introduction of the        CI’s—later     identified as Troy Jukes—old robbery

conviction that occurred in 2002. On the day of trial, the trial court denied

Appellant’s in limine motion, excluding any reference to Troy Jukes’ robbery

conviction because it fell outside the ten-year period set forth in Pa.R.E.

609.1    N.T. Trial, 6/17/14, at 6. Following a jury trial, on June 18, 2014,
____________________________________________


1
  Rule 609, relating to impeachment by evidence of a criminal conviction,
provides in pertinent part:
        (a) In General. For the purpose of attacking the credibility of
        any witness, evidence that the witness has been convicted of a
        crime, whether by verdict or by plea of guilty or nolo contendere,
        must be admitted if it involved dishonesty or false statement.
(Footnote Continued Next Page)


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Appellant was found guilty of PWID, possession of a controlled substance,

and criminal use of a communication facility.           The trial court sentenced

Appellant to 33 to 84 months’ imprisonment for PWID. The trial court also

imposed upon Appellant a concurrent sentence of 12 to 24 months’

imprisonment for criminal use of a communication facility. Appellant filed a

post-sentence motion, challenging, inter alia, the discretionary aspects of

sentencing and the weight of the evidence.                The trial court denied

Appellant’s motion with respect to the weight of the evidence challenge. The

trial court, however, granted Appellant’s motion to the extent it sought

modification of sentence.          In so doing, the trial court did not alter the

aggregate sentence imposed. The trial court sentenced Appellant to 21 to

60 months’ imprisonment for PWID and 12 to 24 months’ imprisonment for

criminal use of a communication facility, to run consecutively.                The

Appellant timely appealed to this Court.          Following Appellant’s filing of a

Pa.R.A.P. 1925(b) statement of errors complained of on appeal, the trial

court issued a Pa.R.A.P. 1925(a) opinion.
                       _______________________
(Footnote Continued)

      (b) Limit on Using the Evidence After 10 Years. This
      subdivision (b) applies if more than 10 years have passed since
      the witness’s conviction or release from confinement for it,
      whichever is later. Evidence of the conviction is admissible only
      if:
             (1) its probative value substantially outweighs its
             prejudicial effect; and
             (2) the proponent gives an adverse party reasonable
             written notice of the intent to use it so that the party
             has a fair opportunity to contest its use.
Pa.R.E. 609(a), (b).



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      On appeal, Appellant raises four issues for our review:

      I. Whether the court’s pretrial order erred on the defense motion
      denying inquiry into the informants [sic] record for robbery
      conviction.

      II. Whether the court erred in finding sufficient evidence to
      support the verdict because the primary witness to the
      transaction was the confidential informant who had at best a
      checkered history and was seeking a favorable outcome by
      cooperating with the government.

      III. Whether the [c]ourt erred in denying [Appellant’s] motion for
      judgment of acquittal as the evidence was not weighty to
      support a conviction. Again, [Appellant] debates the jury’s
      conclusion.

      IV. Whether th[e c]ourt erred when it re-sentenced [Appellant]
      on December 8, 2014 adopting the same net sentence from the
      former order of September 12, 2014, showing that the court
      fully intended on giving [Appellant] the same aggravated range
      sentence raising a substantial question as to the reasonableness
      of the sentence. The [c]ourt also failed to credit whatsoever the
      on-going mitigating medical condition of [Appellant] and taking
      into account the insignificant size of the singular drug
      transaction.

Appellant’s Brief at 7 (internal citations omitted).

      We first address Appellant’s argument that the trial court abused its

discretion by denying his motion in limine excluding all references to Troy

Jukes’ prior conviction for robbery. Appellant contends that introduction of

Jukes’ robbery conviction would have completed Jukes’ “criminal history

[and, as a result,] the jury would have taken a different view of Jukes;

enough   so   that   they   might   not   have   believed   Jukes   or   convicted

[Appellant].” Appellant’s Brief at 11.

      We review a trial court’s denial of a motion in limine for an abuse of

discretion. Commonwealth v. Owens, 929 A.2d 1187, 1190 (Pa. Super.

2007), appeal denied, 940 A.2d 364 (Pa. 2007).              A trial court’s ruling

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regarding the admissibility of evidence will not be disturbed “unless that

ruling reflects ‘manifest unreasonableness, or partiality, prejudice, bias, or

ill-will, or such lack of support as to be clearly erroneous.’” Id.

       Pennsylvania Rule of Evidence 609 provides, in pertinent part, that

evidence of a witness’s prior conviction older than ten years is admissible

only if “(1) its probative value substantially outweighs its prejudicial effect;

and (2) the proponent gives an adverse party reasonable written notice of

the intent to use it so that the party has a fair opportunity to contest its

use.” Pa.R.E. 609(b).

       Based on our review of the record, we conclude that the trial court did

not abuse its discretion in denying Appellant’s motion in limine. Instantly,

the parties do not dispute that Jukes’ robbery conviction was more than ten

years old.     The record reveals that Appellant’s reference to Jukes’ 2002

conviction for robbery would have been cumulative for purposes of

impeaching Jukes’ credibility.2        As the trial court pointed out, Jukes was

____________________________________________


2
  In Commonwealth v. Flamer, 53 A.3d 82 (Pa. Super. 2012), we
explained:

       Evidence may be excluded if its probative value is outweighed by
       the “needless presentation of cumulative evidence.” Pa.R.E.
       403. We define cumulative evidence as “additional evidence of
       the same character as existing evidence and that supports a fact
       established by the existing evidence.” Commonwealth v.
       G.D.M., Sr., 926 A.2d 984, 989 (Pa. Super. 2007) (quoting
       Black’s Law Dictionary, Seventh Edition, at 577), appeal denied,
       [] 944 A.2d 756 ([Pa.] 2008).
Flamer, 53 A.3d at 88 n.6.



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questioned at trial about prior crimen falsi convictions for theft. Trial Court

Opinion, 1/12/16, at 2-3.          Specifically, the Commonwealth asked Jukes

whether he was convicted for theft in 2002 and 2007. N.T. Trial, 6/17/14,

at 77. Jukes responded in the affirmative. Id. Jukes also acknowledged his

theft convictions on cross-examination.          Id. at 93.   Moreover, Jukes also

admitted at trial to working for the government in exchange for lenient

treatment vis-à-vis pending narcotics charges. Id. at 77, 93. Given the fact

that the jury had an opportunity to hear about Jukes’ involvement with

narcotics, his attendant cooperation with the government, and his crimen

falsi convictions for theft, we find the trial court did not abuse its

discretion in excluding references to Jukes’ 2002 robbery conviction.

       We next address Appellant’s second and third arguments together as

they both relate to the weight of the evidence.3              Specifically, Appellant

challenges the jury’s credibility determinations favoring Jukes.

       Our standard in reviewing a weight of the evidence claim is as follows:

       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. 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
____________________________________________


3
   Even though Appellant’s second argument uses the term “sufficient
evidence,” it does not appear to challenge the sufficiency of the evidence
with respect to any elements of the crimes for which he was convicted.
Viewed in context, Appellant’s second argument assails only the jury’s
credibility determination to the extent it found Jukes’ testimony to be
credible.



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       a trial court’s determination that the verdict is against the weight
       of the evidence. 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.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis and

citations omitted).

       Relief on a weight of the evidence claim is reserved for
       extraordinary circumstances, when the [fact-finder’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. On appeal, [an appellate
       court] cannot substitute its judgment for that of the jury on
       issues of credibility, or that of the trial judge respecting weight.
       Our review is limited to determining whether the trial court
       abused its discretion[.]

Commonwealth v. Sanchez, 36 A.3d 24, 39 (Pa. 2011) (citations and

quotation marks omitted).

       With the foregoing standard in mind, we are constrained to conclude

that the trial court did not abuse its discretion in denying Appellant’s weight

of the evidence challenge. It is settled that “[t]he finder of fact—here, the

jury—exclusively weighs the evidence, assesses the credibility of witnesses,

and may choose to believe all, part, or none of the evidence.” Id. at 39. As

a   reviewing    court,    we    may    not    second-guess   the   jury’s   credibility

determination.4 See Clay, supra. Here, the jury’s credibility determination

____________________________________________


4
  To the extent Appellant challenges his in-court identification by Jukes, we
conclude that such challenge is waived. In Pennsylvania, it is well-settled
that a party must make a timely and specific objection at trial in order to
preserve an issue for appellate review. See Pa.R.A.P. 302(a); Pa.R.E.
103(a)(1); see also Commonwealth v. Montalvo, 641 A.2d 1176, 1185
(Pa. Super. 1994) (citation omitted) (“In order to preserve an issue for
(Footnote Continued Next Page)


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favoring Jukes did not shock the trial judge’s sense of justice. We find no

abuse of discretion in the trial court judge’s denying Appellant a new trial on

his weight of the evidence claim.

      We now turn to Appellant’s final argument that the trial court abused

its discretion in imposing an aggregate sentence of 33 to 84 months’

imprisonment. Appellant argues that the imposed sentence is unreasonable

and harsh.

      Preliminarily, we observe that “[t]he right to appeal a discretionary

aspect of sentence is not absolute.” Commonwealth v. Martin, 727 A.2d

1136, 1143 (Pa. Super. 1999). Rather, where an appellant challenges the

discretionary aspects of a sentence, an appellant’s appeal should be

considered as a petition for allowance of appeal.          Commonwealth v.

W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007).                  As we stated 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
                       _______________________
(Footnote Continued)

review, a party must make a timely and specific objection at trial.”). Failure
to do so results in waiver of that issue on appeal. See Pa.R.A.P. 302(a);
see also Commonwealth v. Schoff, 911 A.2d 147, 158 (Pa. Super. 2006).
Here, the trial transcript reveals that Appellant failed to object to his in-court
identification by Jukes.     See N.T. Trial, 6/17/14, at 79-80.          It bears
mentioning that Appellant also was identified at trial, without objection, by
Sgt. Jones. Id. at 40.



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              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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)). Objections to the discretionary aspects of a sentence are waived if

they are not raised at the sentencing hearing or in a motion to modify the

sentence imposed. Id.

        Here, in refuting Appellant’s challenge, the Commonwealth points out

that Appellant is unable to meet the four-part test because his brief does not

contain a section addressing the discretionary aspects of his sentence as

required under Pa.R.A.P. 2119(f).5 Appellee’s Brief at 18. Thus, we consider

his challenge to the discretionary aspect of his sentence waived.              See

Commonwealth v. Foster, 960 A.2d 160, 163 (Pa. Super. 2008) (noting

even if properly preserved, a challenge to the discretionary aspect of a

sentence is waived if an appellant does not include a Pa.R.A.P. 2119(f)

statement in his brief and the opposing party objects to the statement’s

absence), aff’d, 17 A.3d 332 (Pa. 2011).

____________________________________________


5
    Rule 2119(f) provides:
        An appellant who challenges the discretionary aspects of a
        sentence in a criminal matter shall set forth in his brief a concise
        statement of the reasons relied upon for allowance of appeal
        with respect to the discretionary aspects of a sentence. The
        statement shall immediately precede the argument on the merits
        with respect to the discretionary aspects of sentence.
(Emphasis added.)



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     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/8/2016




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