J-S29043-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,               :   IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                    Appellee                :
                                            :
                    v.                      :
                                            :
TORRENCE DEONTA LYDE,                       :
                                            :
                     Appellant              :   No. 2011 WDA 2014

       Appeal from the Judgment of Sentence Entered May 28, 2014,
             in the Court of Common Pleas of Indiana County,
           Criminal Division, at No(s): CP-32-CR-0001206-2013

BEFORE:    PANELLA, MUNDY, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                     FILED JUNE 11, 2015

      Torrence Deonta Lyde (Appellant) appeals from a judgment of

sentence that was entered after a jury convicted him of a number of crimes,

including possession with the intent to deliver a controlled substance

(heroin) and resisting arrest. We affirm.

      The trial court summarized the background underlying this matter as

follows.

      … On August 21, 2013, Pennsylvania State Police had a
      confidential informant purchase heroin at an apartment where
      [Appellant] was present. After the transaction took place, police
      obtained a warrant and located [Appellant] in the apartment,
      within close proximity to a large quantity of heroin. Police
      recorded serial numbers on the currency given to the informant
      for the purchase and all three of these bills were recovered
      during the search. When police arrived, [Appellant] was in the
      bathroom at the back of the apartment where the sound of a
      flushing toilet could be heard. [Appellant] blocked the bathroom
      door in an attempt to stop police from entering and continued to
      resist arrest until he was eventually tasered and subdued.

*Retired Senior Judge assigned to the Superior Court.
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            [A jury convicted Appellant, and the court sentenced him
      on May 28, 2014]. For the offense of possession with the intent
      to deliver 1.8 grams of heroin, a second or subsequent offense,
      [Appellant] was sentenced to a state correctional institution for a
      period of not less than three nor more than twelve years. For
      the offense of conspiracy to possess[] with the intent to deliver
      1.8 grams of heroin, a second or subsequent offense, [Appellant]
      also received a sentence of incarceration for a period of not less
      than three years nor more than twelve years. The possession
      with intent to deliver and conspiracy to possess[] with intent to
      deliver sentences are to run concurrently. No sentence was
      imposed for possession of a controlled substance, as it merged
      with the offense of possession with intent to deliver. For the
      offense of recklessly endangering another person, [Appellant]
      was sentenced to incarceration of not less than one nor more
      than two years [in prison], with this sentence to run
      consecutively to the controlled substance offenses. [Appellant]
      was also sentenced to incarceration of not less than six months
      nor more than one year for the offense of resisting arrest, with
      this sentence to run consecutively to the aforementioned
      sentences.

Trial Court Opinion, 8/29/2014, at 1-2 (unnecessary capitalization omitted).

      On June 30, 2014, Appellant filed a notice of appeal. The trial court

directed Appellant to comply with Pa.R.A.P. 1925(b).         Appellant filed a

1925(b) statement, and the trial court issued an opinion in compliance with

Pa.R.A.P. 1925(a). However, on October 29, 2014, this Court issued a per

curiam order quashing the appeal as untimely filed.       Commonwealth v.

Lyde, 1107 WDA 2014.

      Appellant then timely requested and was granted the reinstatement of

his direct appeal rights.   Appellant timely filed a notice of appeal and sua

sponte filed a 1925(b) statement. The trial court responded to the 1925(b)




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statement by relying on its previously issued 1925(a) opinion. In his brief to

this Court, Appellant asks us to consider the following questions:

      I. Whether the trial court erred by denying [] Appellant’s Motion
      to Demurrer, when the defense challenged the weight of the
      evidence following the Commonwealth’s case.

      II.   Whether the trial court erred by denying the defense
      objection, and allowing the prosecution to have police witnesses
      testify that a controlled buy of illegal drugs was made by a
      confidential informant, from an apartment where [] Appellant
      and others were present, without revealing the name of the
      confidential informant.

Appellant’s Brief at V.

      The manner in which Appellant’s counsel phrases the first issue and

presents the argument in support thereof is confusing.         We begin our

discussion of that issue by observing that, after the Commonwealth rested,

the trial court asked Appellant’s counsel whether he wanted to make a

motion for judgment of acquittal. N.T., 5/19/14, at 141. Counsel responded

as follows: “I would, your Honor. I move for a demurrer on all the charges

except resisting. I don’t think there is enough evidence presented on that to

establish.”   Id. at 141-42.   Soon thereafter, the court denied counsel’s

motion, referring to it as a motion for judgment of acquittal. Id. at 142.

      On appeal, Appellant argues that the trial court erred by denying the

oral motion he made at the close of the Commonwealth’s case. See, e.g.,

Appellant’s Brief at 1 (“The Trial Court erred by denying the Appellant’s

Motion to Demurrer ….”).        However, it is unclear whether Appellant




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ultimately is presenting a challenge to the weight of the evidence or to the

sufficiency of the evidence, as he provides the legal principles for challenging

both.

        To the extent that Appellant’s first issue raises a claim that he is

entitled to a new trial because the jury’s verdict is contrary to the weight of

the evidence, we conclude that the issue is waived. In order to preserve a

weight-of-the-evidence claim for appellate review, Appellant was required to

present such a claim to the trial court in a motion for a new trial orally

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

sentence motion.      Pa.R.Crim.P. 607(A).        Appellant did not file a post-

sentence motion or a written motion before sentencing. While he did make

an oral pre-sentence motion for a “demurrer,” Appellant did not request a

new trial in making that motion and, perhaps more importantly, made the

motion prior to the verdict.      Thus, when he made that motion, any claim

that the verdict was contrary to the weight of the evidence was premature.

        To the extent that Appellant’s first issue raises a claim that the

Commonwealth       failed   to   present   sufficient   evidence   to   support   his

convictions, we first highlight that Appellant was convicted of five crimes.

Appellant fails to indicate what crime he believes the Commonwealth failed

to prove he committed at trial, let alone which element of the crime he




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believes the Commonwealth failed to establish;1 consequently, Appellant has

waived    any   challenge    to     the   sufficiency   of   the   evidence.   See

Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa. Super. 2014) (“In

order to develop a claim challenging the sufficiency of the evidence properly,

an appellant must specifically discuss the elements of the crime and identify

those which he alleges the Commonwealth failed to prove.                Samuel has

failed to do so, and so he has waived this claim for lack of development.”)

(citations omitted).

      Appellant next asserts that “[o]ver objection from the defense, the

[t]rial [c]ourt refused to direct the Commonwealth to reveal the name of the

confidential informant[.]” Appellant’s Brief at 4. Appellant argues that the

trial court erred in this regard.

      Appellant raised this issue in his 1925(b) statement. In response, the

trial court stated that “[a] review of the record shows that [Appellant] made

no objection to this issue[.]”       Trial Court Opinion, 8/29/2014, at 2.     The

Commonwealth also suggests that the record does not support Appellant’s

claim that he raised this issue at trial.          Commonwealth’s Brief at 10.

1
  The only specific challenge Appellant makes regarding the evidence
presented at trial is as follows: “At trial there was not testimony that []
Appellant was involved with a delivery of heroin, either by himself or with
other people.” Appellant’s Brief at 1 (emphasis added); see id. (“[T]he
burden of proving delivery was clearly not met by the Commonwealth.”).
However, Appellant was not convicted of delivering heroin by himself or with
other people; rather, he was convicted of, inter alia, possession with the
intent to deliver heroin and conspiracy to possess with the intent to
deliver heroin.


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Appellant’s brief fails to indicate where in the record he preserved this issue,

in violation of Pa.R.A.P. 2117(c) and 2119(e). Moreover, while reviewing the

certified record, we did not observe any issue raised by Appellant regarding

the identity of the confidential informant.   For these reasons, we conclude

that Appellant waived his second issue. See Pa.R.A.P. 302(a) (“Issues not

raised in the lower court are waived and cannot be raised for the first time

on appeal.”).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 6/11/2015




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