J-S39024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LUIS ANGEL COLON-VASQUEZ,

                            Appellant                No. 1362 MDA 2015


             Appeal from the Judgment of Sentence March 23, 2015
               in the Court of Common Pleas of Dauphin County
               Criminal Division at No.: CP-22-CR-0004118-2014


BEFORE: STABILE, J., PLATT, J.*, and STRASSBURGER, J.*

MEMORANDUM BY PLATT, J.:                                   FILED MAY 17, 2016

        Appellant, Luis Angel Colon-Vasquez, appeals from the judgment of

sentence imposed on March 23, 2015, following his jury conviction of

unlawful delivery of a controlled substance1 and unlawful possession of drug

paraphernalia.2      On appeal, Appellant claims that the verdict was against

the weight of the evidence and challenges the discretionary aspects of

sentence. For the reasons discussed below, we affirm.




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
2
    35 P.S. § 780-113(a)(32).
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      We take the underlying facts and procedural history in this matter

from the January 12 and 13, 2015 notes of testimony from the jury trial and

our independent review of the certified record.

      On April 1, 2014, Wilfredo Quiles, a confidential informant working

with the Harrisburg Bureau of Police, purchased fourteen bags of heroin from

Appellant. (See N.T. Trial, 1/12-13/15, at 101-03). Harrisburg Bureau of

Police Detective, Donald Heffner, an experienced narcotics detective,

supervised the operation. (See id. at 18-19, 33-34).

      At trial, Detective Heffner testified that he supervised the call between

Quiles and Appellant and that Quiles arranged for the meeting to take place

at Murry’s Market at 17th and Paxton Streets in Harrisburg. (See id. at 30-

31). Appellant agreed to sell Quiles a bundle of heroin for $80.00. (See id.

at 32). Immediately prior to the meeting, Detective Heffner searched Quiles

to ensure that he was not in possession of any money, drugs, weapons, or

paraphernalia.   (See id. at 33-34).   Detective Heffner gave Quiles $80.00

for purchase of the drugs; the police photographed the money prior to giving

it to Quiles. (See id. at 32).

      After Quiles set up the buy, the police arranged a multi-car

surveillance of the area using video equipment to record the transaction.

(See id. at 31). In total, four police officers observed the transaction. (See

id.). Detective Heffner, accompanied by another officer, drove Quiles to the




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meeting place, making certain to park in a location where they could see him

throughout the meeting.     (See id. at 33).

      Quiles exited the car at approximately 4:15 p.m., all team members

had a detailed description of Quiles and knew when he exited the car. (See

id. at 31, 33).    Approximately ten minutes later, Appellant arrived; Quiles

approached him and the police observed a hand-to-hand transaction. (See

id. at 31-34).      Quiles then walked directly back to Detective Heffner’s

vehicle and gave him fourteen bags of heroin packaged in a bundle. (See

id. at 35). Detective Heffner then searched Quiles to make sure that he had

not taken any drugs or money, which he had not. (See id. at 40-41). At

trial, the parties stipulated that the retrieved substance was heroin. (See

id. at 38-41).

      On January 13, 2015, the jury convicted Appellant of all charges. On

March 23, 2015, the trial court sentenced Appellant to an aggregate term of

incarceration of not less than thirty-three nor more than seventy-two

months. On March 30, 2015, Appellant filed a timely post-sentence motion,

which the trial court denied on July 7, 2015.     The instant, timely appeal

followed.    On August 19, 2015, the trial court ordered Appellant to file a

concise statement of errors complained of on appeal.          See Pa.R.A.P.

1925(b).     On September 9, 2015, Appellant filed a timely Rule 1925(b)

statement.       The trial court did not issue an opinion pursuant to Rule

1925(a).


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       On appeal, Appellant raises the following questions for our review:

       1. Whether the trial court erred in denying Appellant’s [p]ost-
          [s]entence [m]otion where Appellant’s convictions were
          against the weight of the evidence so as to shock one’s sense
          of justice as Appellant was never shown to have committed
          the crimes alleged?

       2. Whether the trial court erred in denying Appellant’s [p]ost-
          [s]entence [m]otion where Appellant’s sentence is excessive
          and unreasonable in light of the alleged gravity of the offense,
          Appellant’s rehabilitative needs, and what is needed to
          protect the public?

(Appellant’s Brief, at 6) (underlining omitted).

       In his first issue, Appellant challenges the weight of the evidence, 3

claiming that the Commonwealth did not show him to have possessed the

drugs, because the testimony of the confidential informant, Wilfredo Quiles

was “patently unreliable.” (Appellant’s Brief, at 17; see id. at 15-18). We

disagree.

        Our scope and standard of review of a weight of the evidence claim is

as follows:

             The finder of fact is the exclusive judge of the weight of
       the evidence as the fact finder is free to believe all, part, or none
       of the evidence presented and determines the credibility of the
       witnesses.

             As an appellate court, we cannot substitute our judgment
       for that of the finder of fact. Therefore, we will reverse a jury’s
       verdict and grant a new trial only where the verdict is so
____________________________________________


3
  Appellant properly preserved his weight of the evidence claim in a post-
sentence motion. (See [Appellant’s] Post-Sentence Motion, 3/30/15, at
unnumbered pages 2-3).



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      contrary to the evidence as to shock one’s sense of justice. A
      verdict is said to be contrary to the evidence such that it shocks
      one’s sense of justice when the figure of Justice totters on her
      pedestal, or when the jury’s verdict, at the time of its rendition,
      causes the trial judge to lose his breath, temporarily, and causes
      him to almost fall from the bench, then it is truly shocking to the
      judicial conscience.

            Furthermore, where the trial court has ruled on the weight
      claim below, an appellate court’s role is not to consider the
      underlying question of whether the verdict is against the weight
      of the evidence. Rather, appellate review is limited to whether
      the trial court palpably abused its discretion in ruling on the
      weight claim.

Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013) (en

banc) (citation and internal quotation marks omitted).        “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, 879-80 (Pa. 2008), cert. denied, 556 U.S. 1106 (2009) (citation

omitted).

      Here, the trial court rejected Appellant’s weight of the evidence claim,

stating that, after a review of the record, he could not find that Quiles’

testimony was “patently unbelievable.” (Trial Court Opinion, 7/07/15, at 3).

We agree. The record reflects that the jury chose to credit the testimony of

Quiles and the police and rejected the defense’s theory of the case.        The

jury, sitting as finder of fact, was free to believe the Commonwealth’s

witnesses and to disbelieve the defense.           See Commonwealth v.

Griscavage, 517 A.2d 1256, 1259 (Pa. 1986). “[I]t is for the fact-finder to

make credibility determinations, and the finder of fact may believe all, part,

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or none of a witness’s testimony.” Commonwealth v. Lee, 956 A.2d 1024,

1029 (Pa. Super. 2008), appeal denied, 964 A.2d 894 (Pa. 2009) (citation

omitted). Thus, Appellant’s weight of the evidence claim is without merit.

      In his second claim, Appellant argues that his sentence was excessive

and unreasonable because the Commonwealth and he disagreed about his

prior record score and “it was unclear which prior record score the trial court

was using when imposing sentence.”      (Appellant’s Brief, at 20; see id. at

18-21). However, Appellant waived this claim.

      Preliminarily, we note, “[i]ssues challenging the discretionary aspects

of sentence must be raised in a post-sentence motion or by presenting the

claim to the trial court during the sentencing proceedings.       Absent such

efforts, an objection to a discretionary aspect of a sentence is waived.”

Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa. Super. 2004), appeal

denied, 860 A.2d 122 (Pa. 2004) (citations and internal quotations marks

omitted).

      Here, while Appellant did file a post-sentence motion and mentioned

that there was disagreement about the prior record score, the only issue he

raised was that the sentence was excessive and unreasonable because the

offense was not a crime of violence and there was no victim.             (See

[Appellant’s] Post-Sentence Motion, 3/30/15, at unnumbered page 2). It is

settled that an appellant waives any discretionary aspects of sentence issue

not raised in a post-sentence motion; further, an appellant cannot raise an


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issue for the first time on appeal.4           See Commonwealth v. Mann, 820

A.2d 788, 793-94 (Pa. Super. 2003), appeal denied, 831 A.2d 599 (Pa.

2003) (finding claim sentencing court did not put sufficient reasons to justify

sentence on record waived where issue was not raised in post-sentence

motion);    see    also    Pa.R.A.P.     302(a).    Thus,   Appellant   waived   his

discretionary aspects of sentence claim.5

       Accordingly, for the reasons discussed above, we affirm the judgment

of sentence.

       Judgment of sentence affirmed.




____________________________________________


4
  We note that Appellant did not raise the issue regarding the failure to
decide his prior record score in his Rule 1925(b) statement. (See Statement
of Errors Complained of Upon Appeal Pursuant to Pa.R.A.P. 1925(b),
9/09/15, at unnumbered page 1). As amended in 2007, Pennsylvania Rule
of Appellate Procedure 1925 provides that issues that are not included in the
Rule 1925(b) statement or raised in accordance with Rule 1925(b)(4) are
waived. See Pa.R.A.P. 1925(b)(4)(vii); see also Commonwealth v. Lord,
719 A.2d 306, 308 (Pa. 1998), superseded by rule on other grounds as
stated in Commonwealth v. Burton, 973 A.2d 428, 431 (Pa. Super. 2009).
5
   In any event, the claim is without merit. While the trial court did not
specify if it was sentencing Appellant as a five or as a RFEL, the sentence it
imposed was a standard range sentence under either prior record score.
(See N.T. Sentencing, 5/23/15, at 18-19, 41-42). The court had the benefit
of a Pre-Sentence Investigation Report (PSI). We have stated that when a
trial court has a PSI and imposes a standard range sentence “Pennsylvania
law views the sentence as appropriate under the Sentencing Code.”
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (citations
omitted).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/2016




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