J-S37044-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
             v.                            :
                                           :
DONELL WILLIAMS,                           :
                                           :
                   Appellant               :          No. 1999 MDA 2016

           Appeal from the Judgment of Sentence November 9, 2016
              in the Court of Common Pleas of Franklin County,
              Criminal Division, No(s): CP-28-CR-0000658-2016

BEFORE: STABILE, MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                           FILED JUNE 29, 2017

        Donell Williams (“Williams”) appeals from the judgment of sentence

imposed following his conviction of one count each of conspiracy to deliver a

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

affirm.

        In its Opinion, the trial court set forth the relevant factual and

procedural history, which we adopt for the purpose of this appeal. See Trial

Court Opinion, 2/6/17, at 2-8.

        On appeal, Williams raises the following issue for our review: “Should

Williams’[s] conviction be overturned based on the fact that no reasonable

jury could have found him guilty based on the evidence presented at trial?”

Brief for Appellant at 5.




1
    See 18 Pa.C.S.A. §§ 903, 7512(a).
J-S37044-17


      Although Williams’s issue on appeal is worded somewhat vaguely, his

argument challenges both the sufficiency and weight of the evidence. 2 With

regard to the sufficiency of the evidence, Williams contends that the

evidence presented at trial did not provide a reasonable basis for the jury to

find him guilty of the above-mentioned crimes. Id. at 10. Williams asserts

that the only evidence presented on the conspiracy charge was that Williams

“was present at his home on the date in question except for a moment when

he walked outside with his girlfriend and dog.” Id. Williams claims that the

only evidence presented on the criminal use of a communications facility

charge was the testimony provided by a confidential informant, who claimed

that he had spoken to Williams. Id.

      In its Opinion, the trial court addressed Williams’s challenge to the

sufficiency of the evidence, set forth the relevant law, and determined that

the evidence presented by the Commonwealth was sufficient to support each

of Williams’s convictions.   See Trial Court Opinion, 2/6/17, at 9-15.    We

agree with the reasoning of the trial court, and affirm on the basis of its

Opinion. See id.

      With regard to the weight of the evidence, Williams argues that “[i]t

was a gross oversight for the jury to have overlooked the fact that the

2
  In his court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters
complained of on appeal, Williams framed his issue as a challenge to the
weight of the evidence, but his argument therein also raised a challenge to
the sufficiency of the evidence. For this reason, the trial court addressed
both Williams’s sufficiency and weight claims in its Pa.R.A.P. 1925(a)
Opinion.


                                  -2-
J-S37044-17


informant, who was seeking to better his cause, had misidentified to the

drug task force the actual person who made a hand[-]to[-]hand delivery to

him.” Brief for Appellant at 10. Williams further argues that “[f]or the jury

to believe that an informant who could not even properly identify a person

who [sic] he looked at in the eye during a direct hand[-]to[-]hand deal,

could properly identify Williams based on a phone call, when the informant

admitted that he had never spoken to the other Williams brothers, is

incredulous.” Id. at 10-11.

     Pursuant to Pa.R.Crim.P. 607, a claim that the verdict was against the

weight of the evidence must be raised with the trial judge in a motion for a

new trial before sentencing or in a post-sentence motion. Here, Williams did

not raise his weight of the evidence claim at any time before sentencing or

in his post-sentence Motion. Accordingly, this issue has been waived. See

Commonwealth v. Filer, 846 A.2d 139, 142 (Pa. Super. 2004).3

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/29/2017



3
 Even if Williams had preserved this issue for our review, we would have
concluded that the issue lacks merit for the reasons expressed by the trial
court in its Opinion. See Trial Court Opinion, 2/6/17, at 15-17.


                                 -3-
                                                                                     Circulated 05/23/2017 09:29 AM




    IN THE COURT OF COMMON PLEAS OF THE 39™ JUDICIAL
   DISTRICT OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH

Commonwealth       of Pennsylvania,           Criminal Action

           vs.                                No. 658-2016               /

Donell Williams,
      Defendant                               Honorable Carol L. Van Horn




         OPINION sur PA. R.A.P. 1925(a} AND ORDER OF COURT




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Before Van Horn, P.J.
    IN THE COURT OF COMMON PLEAS OF THE 39™ JUDICIAL
   DISTRICT OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH

Commonwealth of Pennsylvania,               Criminal Action

            vs.                             No. 658-2016

Donell Williams,
      Defendant                             Honorable Carol L. Van Horn


                        STATEMENT OF THE CASE

      On April 26, 2016, the above-captioned Defendant, Donell Williams, was

charged with one count of Conspiracy to Deliver a Controlled Substance, 18 P.S. §

903, and one count of Criminal Use of a Communication Facility for "us[ing] a

communication facility to commit, cause or facilitate the commission or the

attempt thereof of any crime which constitutes a felony under ... The Controlled

Substance, Drug, Device and Cosmetic Act" where a telephone constitutes a

"communication facility", 18 P.S. § 7512(a). On September 19, 2016, a jury found

Defendant guilty on both counts. On November 9, 2016, this Court sentenced

Defendant to 27 to 60 months in a State Correctional Institution ("SCI") on the

count of Conspiracy, and 18 to 60 months in a SCI on the count of Criminal Use of

a Communication Facility to run at the expiration of the Conspiracy count.

      Defendant filed a Notice of Appeal on December 8, 2016. On December 8,

2016, this Court directed Defendant to file a Concise Statement of the Matters

Complained on Appeal ("Concise Statement") pursuant to Pa.R.A.P. 1925(b)(l).
                                                                                    2
Defendant filed a Concise Statement on December 29, 2016. The Court will now

respond to Defendant's claims of error in this Opinion and Order of Court pursuant

to Pa.R.A.P. 1925(a).

                                 BACKGROUND

      At trial, the Commonwealth provided the Court with evidence pertaining to

the incident giving rise to the instant charges. The Commonwealth called Detective

Jason Taylor, an investigator with the Franklin County Drug Task Force, as its first

witness.

      Detective Taylor testified that he participated in an investigation with regard

to Defendant and Defendant's two brothers in the delivery of heroin in November

of 2015. (T.P. Trial, September 19, 2016, at 6). Detective Taylor explained that

he was part of the surveillance team on November 24, 2015, and that on that day

he was able to identify Defendant going in and out of the house believed to be

Defendant's residence. (Id., at 6-8). Detective Taylor testified that the goal of that

particular day's investigation was to purchase heroin from Defendant and his

brothers. (Id. at 7). Detective Taylor noted that Defendant also went by the

 nicknames "Muscles" or "Mus". (Id. at 17). Surveillance videos from November

 24, 2015 were played at trial, during which Detective Taylor identified




                                                                                         3
Defendant's brother Lamont Williams1 as being "out scouting the neighborhood".

(Id. at 25).

       Next, the Commonwealth called Detective Scott Wolfe, of the Shippensburg

Police Department, as a witness. Like Detective Taylor, Detective Wolfe

participated in the November 24, 2015 investigation into heroin being sold out of

Defendant's residence. (Id. at 31 ). Detective Wolfe testified that his role in the

investigation was to place a phone call to a confidential informant ("CI"), and to

drive the CI to a location from which he would obtain heroin. (Id. at 32). Prior to

the controlled purchase, Detective Wolfe testified that he searched the CI for

controlled substances and determined that he had none on his person. (Id.).

Detective Wolfe testified that he watched the CI approach the set location, and that

just prior to losing sight of the CI, heard someone on the radio state the CI was

now in their line of vision. (Id. at 33). Detective Wolfe testified that he lost sight

 of the CI for about three to four minutes. (Id.). Upon return, the CI got into

 Detective Wolfe's vehicle and gave Detective Wolfe three bags containing

 suspected heroin. (Id. at 34). Detective Wolfe testified that the three bags were




 I
   Defendant's brother Lamont Williams was not a co-defendant in the instant trial. However, the Franklin County
 District Attorney's Office has charged Lamont Williams for similar crimes. Co-defendant in the instant case is
 Defendant's other brother, Booker Williams. (See T.P. Trial, at 77, 113).

                                                                                                                   4
actually corners of plastic bags, which indicated to him the heroin originated from

Baltimore.2 (Id. at 36).

        The Commonwealth next called the CI, Matthew Sheffler, as a witness. (Id.

at 48). Mr. Sheffler testified that after being incarcerated, he requested an

interview with a drug task force investigator to identify individuals who sold

heroin. (Id. at 52). Mr. Sheffler testified that on November 24, 2015, he met with

Detective King, and that he contacted Mus-whom he also identified as Donnell

Williams-to set up the purchase of heroin. (Id. at 53, 54). Mr. Sheffler indicated

to the Court that prior to the controlled purchase, he had met with both Defendant

and his brothers. (Id. at 55). Mr. Sheffler testified that when speaking with

Defendant, he explained he was looking to purchase three bags of heroin for one

hundred dollars. (Id. at 55). Mr. Sheffler further noted that Defendant responded

by requesting they meet in Waynesboro, near the Turkey Hill. (Id.). Mr. Sheffler

noted that following a search of his person performed by the drug task force, he

was driven to the set location and given money to purchase the drugs. (Id.). Mr.

 Sheffler stated that it was one of Defendant's brothers, and not Defendant, who

 met and sold him the drugs. (Id.). A video recording, which Mr. Sheffler

 identified as his own recording of the transaction, was played at trial. (Jd. at 56-



 2
   Detective Wolfe testified that purchases of Baltimore heroin are generally bundled in four grams ofrolled heroin,
 which individual dealers divide into dosage units, typically placed in the comer of a plastic bag which they tie a knot
 in and rip off from the rest of the bag. (T .P. Trial, at 36).

                                                                                                                      5
57). Mr. Sheffler indicated that Defendant called him on the phone near the end of

the recording, and that he knew it was Defendant. (Id. at 58, 67).

      The Commonwealth called Detective Brad Kyner of the Franklin County

Drug Task Force as the next witness. Detective Kyner testified that on November

24, 2015, he assisted in an investigation in his capacity as a

surveillance/identification   officer. (Id. at 71). Detective Kyner testified that while

on surveillance, he "observed a black male who was identified as Booker Williams

walking west on main across Fairview, and then walk south past my location." (Id.

at 74). He testified that due to safety and integrity concerns, he moved his vehicle

to avoid identification by Defendant's brother. (Id. at 75). Detective Kyner

testified next that he heard on the radio that the CI was walking west on Main

Street, and that as he "pulled up, waiting at the stop sign, the informant and Mr.

Booker Williams met at that location. They physically met." (Id.). Detective

Kyner also indicated that he participated in the execution of a search warrant of

Defendant's residence. (Id. at 76). He testified that at the time of the search,

Defendant was at the residence. (Id.).

       The Commonwealth next called Detective Mark King, from the Franklin

 County Drug Task Force, as a witness. Detective King testified that he was the

 lead officer of the investigation into the Williams brothers, Donnell, Booker, and

 Lamont, which began around the end of October/early November of 2015. (Id. at


                                                                                           6
87). Detective King testified that he was the one to interview the CI when he

approached the drug task force, that the CI disclosed he could purchase heroin

from Defendant-known to him as Mus-and that the CI provided him with the

phone number 240-329-7001. (Id. at 90). Detective King testified that the phone

number 240-329-7001 later came up in the subsequent arrest of Defendant's

brother Lamont Williams, as it was a number in Lamont William's phone under

the contact name Mus. (Id. at 91-92). Detective King also testified that the phone

number 240-329-7001 was under the name "Mus" or "Muse" on two other phones

confiscated during the execution of a search warrant in another drug-related case.

(Id. at 92). Detective King testified that the phone call made by the CI on

November 24, 2015, for the purpose of setting up a purchase of heroin, was made

to the same phone number, 240-329-7001. (Id. at 93). Detective King also

testified as to the three bags of heroin obtained by the CI, that he felt it was

significant that the heroin was in "plastic bags that you commonly use to make

sandwiches." (Id. at 99).

       Next, Detective King that he conducted a trash pull of Defendant's residence

 on January 20, 2016. (Id. at 100-01). Detective King noted that the trash pull

 revealed a number of bags with their comers missing. (Id. at 101 ). Detective King

 testified that another trash pull was conducted on March 16, 2016, during which

 more plastic bags with their comers missing were found. (Id. at 104).


                                                                                     7
          Following this subsequent search, a search warrant was applied for and

executed on Defendant's residence. (Id. at 105-06). Detective King testified to the

authenticity of photographs admitted at trial, which he explained were taken during

the execution of the search warrant, and which depicted the master bedroom of

Defendant and his girlfriend. (Id. at 107). Detective King described the

photographs as depicting: a "little bit of marijuana that's wrapped up in a plastic

sandwich bag and cash"; "money in a drawer"; "a Century Link account summary

[with] the name, Donnell Williams"; "a letter, it looks like it may have come from

a prison to [Defendant's girlfriend] and Donnell Williams"; "a letter addressed to

Donnell Williams"; a "pill bottle, and to the left is a digital scale with what appears

to be heroin residue"; "Donnell Williams' Pennsylvania identification card"; and

"Donnell Williams' social security card". (Id. at 108-10).

                                             ISSUES RAISED

Defendant raises the following issues in his Concise Statement.'

       1. The verdict of the Jury was against the weight of the evidence.

       2. Despite Defendant having never requested same, his attorney should have

           filed a motion to sever his case from that of his co-defendant, in that the jury

           was more likely to have found him guilty than not, based on the actions of

           his co-defendant.


 3
     Concise Statement of Matters Complained of on Appeal, December 29, 2016, at 3.

                                                                                              8
  3. The sentence imposed upon Defendant by the Court was excessive, beyond

      that which was recommended by Franklin County Probation, and an abuse

      of the Court's discretion.

                                      DISCUSSION

      Defendant raises the aforementioned 3 issues on appeal. This Court will
consider each

issue in tum.

      I.        Sufficiency and Weight of the Evidence

      In the instant case, Defendant avers in issue 1 that the jury verdict was

against the weight of evidence. However, in addition to this averment, Defendant

also offers the following brief argument, which on its face raises the issue of

sufficiency of the evidence: "a reasonable jury would not have found him guilty of

either of the charges based on the evidence presented, none of which sufficiently

placed Williams at the scene of a sale, showed that he conspired to cause the sale,

or that he used a communication device." (Concise Statement). As there are

separate legal standards for challenging the (A) sufficiency of the evidence and (B)

the weight of the evidence, this Court will consider each issue in tum.

       A. Sufficiency of the Evidence

       The standard for evaluating sufficiency of the evidence claims is well

established:

                The standard we apply when reviewing the sufficiency of
                the evidence is whether viewing all the evidence
                                                                                      9
            admitted at trial in the light most favorable to the verdict
            winner, there is sufficient evidence to enable the fact-
            finder to find every element of the crime beyond a
            reasonable doubt.

Commonwealth v. McClendon, 874 A.2d 1223, 1228 (Pa. Super. 2005) (citations

omitted); see also Commonwealth v. Moreno, 14 A.3d 133, 136 (Pa. Super. 2011).

When applying this standard, the court "may not weigh the evidence and substitute

our judgment" for that of the jury. Commonwealth v. Mack, 850 A.2d 690, 693

(Pa. Super. 2004) (quoting Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.

Super. 2001)). Moreover, "[a]ny doubts regarding a defendant's guilt may be

resolved by the fact-finder unless the evidence is so weak and inconclusive that as

a matter of law no probability of fact may be drawn from the combined

circumstances." Commonwealth v. Eckrote, 12 A.3d 383, 386 (Pa. Super. 2010)

( citing DiStefano, 782 A.2d at 582). Importantly, "facts and circumstances

established by the Commonwealth need not preclude every possibility of

innocence." Mack, 850 A.2d at 693 (quoting DiStefano, 782 A.2d at 582).

However, "guilt must be based on facts and conditions proved," and the evidence

is insufficient if guilt is based on "suspicion or surmise." Eckrote, 12 A.3d at 386

(citing Commonwealth v. Swerdlow, 636 A.2d 1173 (Pa. Super. 1994)). A

conviction may be based entirely on circumstantial evidence as long as the

"evidence links the accused to the crime beyond a reasonable doubt."

Commonwealth v. Chmiel, 639 A.2d 9, 11 (Pa. 1994). Finally, when deciding
                                                                                       10
whether the evidence is sufficient to sustain the verdict, "the entire record must be

evaluated and all evidence actually received must be considered."    Mack, 850 A.2d

at 693 (quotingDiStefano, 782 A.2d at 582). Yet, "[t]he fact finder is free to

believe all, part, or none of the evidence presented at trial." Moreno, 14 A.3d at

136.

       In the instant case, Defendant challenges the sufficiency of the evidence to

sustain his convictions for Conspiracy to Deliver a Controlled Substance, and

Criminal Use of a Communication Facility. As explained by the Pennsylvania

Supreme Court:

             To convict a defendant of conspiracy, the trier of fact
             must find that: ( 1) the defendant intended to commit or
             aid in the commission of the criminal act; (2) the
             defendant entered into an agreement with another (a "co-
             conspirator") to engage in the crime; and (3) the
             defendant or one or more of the other co-conspirators
             committed an overt act in the furtherance of the agreed
             upon crime. The essence of a criminal conspiracy, which
             is what distinguishes this crime from accomplice
             liability, is the agreement made between the co-
             conspirators.

 See Commonwealth v. Murphy, 844 A.2d 1228, 1238 (Pa. 2004) (internal citations

 omitted); see also 18 Pa.C.S. § 903. As with accomplice liability, to establish a

 defendant's participation in a conspiratorial agreement to commit a crime, "[m]ere

 association with the perpetrators, mere presence at the scene, or mere knowledge

 of the crime are insufficient". See Murphy, 844 A.2d at 1238 (quoting


                                                                                        11
Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002)). Indeed,

some additional evidence of defendant's intent to act with his co-conspirator to

commit the crime is required. See Murphy, 844 A.2d at 123 8 ( citing Lambert, 795

A.2d at 1016; Commonwealth v. Wayne, 720 A.2d 456, 464 (Pa. 1998)). However,

as direct evidence of the conspiratorial agreement is rarely available, circumstantial

evidence is almost always employed to prove a defendant's criminal intent.

Murphy, 844 A.2d at 1238 (citing Commonwealth v. Spatz, 716 A.2d 580, 592 (Pa.

1992)). "[T]he relations, conduct or circumstances of the parties or overt acts on

the part of the co-conspirators" are examples of such circumstantial evidence.

Murphy, 844 A.2d at 1238 (citing Wayne, 720 A.2d at 463-64). Upon a finding

that an agreement existed which the defendant intentionally entered into, "that

defendant may be liable for the overt acts committed in furtherance of the

conspiracy regardless of which co-conspirator committed the act." Id.

       We find that the evidence in the instant case was sufficient for the jury to

convict Defendant of Conspiracy. When viewing the evidence in the light most

favorable to the verdict winner, the Commonwealth, this Court is persuaded that

Defendant did not have a "[m]ere association with the perpetrators ... or mere

 knowledge of the" delivery of heroin. See Murphy, 844 A.2d at 1238 (quoting

 Lambert, 795 A.2d at 1016). Rather, the Commonwealth presented evidence

 whereby the jury could have found Defendant acted with intent to facilitate the


                                                                                      12
delivery of heroin, namely through the phone call setting up a heroin purchase

placed by the CI to a number identified by multiple sources as belonging to Mus.

(See T.P. Trial, at 53-55, 90-93). Moreover, the Commonwealth presented

photographic evidence at trial, depicting Defendant's master bedroom, including

photos of mail identifying Defendant's name and the address of the residence

searched, as well as various drug paraphernalia often used in the sale of heroin.

(Id. at 108-10). Additionally, the evidence presented at trial supports a finding by

the jury that Defendant and his brothers had an agreement to engage in the delivery

of heroin. Specifically, the Commonwealth presented evidence from which the

jury could draw the conclusion that Defendant set up a heroin purchase with the

CI, and that Defendant's brother delivered heroin to the CI-namely testimony as

to the purchase, as well as the Cl's acquisition of three bags of heroin. (Id. at 55-

57). Finally, the evidence presented at trial supports a finding that the overt act

requirement was satisfied. Here, as noted above, the Commonwealth presented

evidence from which the jury could draw the conclusions that the Defendant set up

 a heroin purchase with the CI, and that Defendant's brother delivered heroin to the

 CI. Both of these plausible conclusions represent overt acts in the furtherance of

 delivering heroin.

       Viewing the above noted evidence in the light most favorable to the

 Commonwealth, there was sufficient evidence to enable the jury to find that


                                                                                        13
Defendant engaged in Conspiracy to deliver heroin. Accordingly, Defendant's

claim as to the sufficiency of evidence regarding his Conspiracy conviction is

meritless.

       Next, we must consider whether the evidence was sufficient for the jury to

convict Defendant of Criminal Use of a Communication Facility. To convict a

defendant of Criminal Use of a Communication Facility, the trier of fact must find

that the defendant "use[ d] a communication facility to commit, cause or facilitate

the commission or the attempt thereof of any crime which constitutes a felony

under ... The Controlled Substance, Drug, Device and Cosmetic Act." 18 Pa.C.S.

§ 7512(a). Under Pennsylvania law, a telephone constitutes a communication

facility. 18 Pa.C.S. § 7512(c). Pursuant to Pennsylvania's    Controlled Substance,

Drug, Device and Cosmetic Act, "the manufacture, delivery, or possession with

intent to manufacture or deliver, a controlled substance by a person not registered

under this act, or a practitioner not registered or licensed by the appropriate State

board, or knowingly creating, delivering or possessing with intent to deliver, a

 counterfeit controlled substance" is prohibited.   35 P.S § 780-113(a)(30).

        We find that the evidence in the instant case was sufficient for the jury to

 convict Defendant of Criminal Use of a Communication Facility. Based on the

 evidence presented at trial, the jury could have found that Defendant used a

 telephone to "commit, cause or facilitate the commission ... of any crime which


                                                                                        14
constitutes a felony under ... The Controlled Substance, Drug, Device and

Cosmetic Act." 18 Pa.C.S. § 7512(a). In the instant case, the Commonwealth

presented evidence at trial supporting a conclusion by the jury that Defendant set

up a heroin purchase with the CI over the telephone.   (See T.P. Trial, at 53-57).

Specifically, the Commonwealth provided testimony regarding the phone number

240-329-7001, evidence supporting the inference that the phone number belonged

to Defendant, and that this phone number was used by the CI to reach Defendant.

(Id. at 53-55, 90-93). Finally, the delivery of heroin falls within the purview of

Pennsylvania's Controlled Substance, Drug, Device and Cosmetic Act.

Accordingly, when viewing the evidence in the light most favorable to the

Commonwealth, this Court is persuaded that evidence was sufficient for a jury

finding that Defendant used a telephone at the number 240-329-7001 to facilitate a

delivery of heroin

       It is clear from the face of the record that the Commonwealth presented

evidence for all elements of Criminal Use of a Communication Facility.

Defendant's claim as to the sufficiency of evidence regarding his Criminal Use of a

 Communication Facility conviction is therefore meritless.

       B. Weight of the Evidence

       A verdict is against the weight of the evidence where it is "so contrary to the

 evidence as to shock one's sense of justice and make the award of a new trial


                                                                                     15
imperative."   Commonwealth v. Hudson, 955 A.2d 1031, 1035 (Pa. Super. 2008)

(quoting Commonwealth v. Rossetti, 863 A.2d 1185, 1191 (Pa. Super. 2004)). The

jury is entitled "to believe all, part, or none of the evidence, and credibility

determinations rest solely within the purview of the fact-finder." See

Commonwealth v. Flor, 998 A.2d 606, 626 (Pa. 2010) (citing Commonwealth v.

Treiber, 874 A.2d 26, 30 (Pa. 2005)). Furthermore, the jury does not have to

believe any testimony and "the weight to be ascribed to any testimony is a

determination that rests exclusively with the finder-of-fact." See Flor, 998 A.2d at

626. "A new trial should not be granted [based upon] a mere conflict in the

testimony" and must have a stronger foundation than a "reassess[ment of] the

credibility of witnesses". Bruce, 916 A.2d at 665 (quoting Widmer, 744 A.2d at

751-52). The court must not act as a thirteenth juror. See id. Rather, the Court

must determine that "notwithstanding all the facts, certain facts are so clearly of

greater weight that to ignore them or to give them equal weight with all the facts is

to deny justice." Id. (quoting Widmer, 744 A.2d at 751-52).

       Here, Defendant alleges that the jury verdict was against the weight of the

 evidence. (Concise Statement). Defendant argues that "a reasonable jury would

 not have found him guilty of either of the charges based on the evidence presented,

 none of which sufficiently placed Williams at the scene of a sale, showed that he

 conspired to cause the sale, or that he used a communication device." (Id.).


                                                                                      16
       Defendant does not offer further argument to support this averment.

However, it is not this Court's job to determine the credibility of witnesses, their

testimony, or to act as a decider of fact. See Commonwealth v. Bruce, 916 A.2d

657, 665 (Pa. Super. 2007) (quoting Commonwealth v. Widmer, 744 A.2d 745,

751-52 (Pa. 2000)). To do so would be to usurp the role of the jury. Id.

       Therefore, Defendant's weight claim fails. The jury is free to believe all,

part, or none of the evidence, and to make credibility determinations. Upon careful

consideration of the record, the Court does not find any of the evidence presented

by the Defendant in support of his weight claim so clearly of greater weight than

the evidence presented supporting his convictions that failure to give it credence

amounts to a denial of justice. The verdicts are not so contrary to the evidence as

to shock one's sense of justice.

       II.    Ineffective Assistance of Counsel Claim

       In issue 2, Defendant avers that his attorney should have filed a motion to

 sever his case from that of his co-defendant, in that the jury was more likely to

have found him guilty than not, based on the actions of his co-defendant. ( Concise

 Statement). Defendant argues that his attorney had no rational basis for failing to

 have filed such a motion, and that "it is likely that the jury simply found

 [Defendant] guilty of the charges against him, despite the paucity of evidence,

 solely due to the fact that they found his co-defendant guilty, to whom there was a


                                                                                       17
plethora of evidence suggesting the latter's guilt." (Id.). While this issue does not

plainly raise an IAC claim, its grounding in Defendant's attorney's failure to file a

motion to sever the case between co-defendants is in fact a claim for Ineffective

Assistance of Counsel (IAC).

      Prior to the Pennsylvania Supreme Court's 2002 decision in Commonwealth

v. Grant, 813 A.2d 726 (Pa. 2002), claims raising the issue ofIAC were required to

be brought "at the earliest opportunity, including on direct appellate review." See

Commonwealth v. Barnett, 25 A.3d 371, 373 (Pa. 2011) (explaining the rule of

Commonwealth v. Hubbard, 372 A.2d 687 (1977), which was abrogated by Grant).

The Grant Court reversed this doctrine, explaining that such claims "require

further fact-finding, extra-record investigation and where necessary, an evidentiary

hearing." Grant, 813 A.2d at 736. Accordingly, the Grant Court "held that claims

of ineffective assistance of counsel should ordinarily be reserved for collateral

review." See Barnett, 25 A.3d at 373; see also Grant, 813 A.2d at 737.

       In 2011, the Pennsylvania Supreme Court once again considered the

 appropriate procedure for raising IAC claims. See generally Barnett, 25 A.3d 371.

 In Commonwealth v. Barnett, the Court went a step further than Grant, prohibiting

 the raising of IAC claims on appeal, "absent an 'express, knowing and voluntary

 waiver"' of his right to pursue a Post Conviction Relief Act ("PCRA") claim. Id. at




                                                                                        18
377 (quoting Commonwealth v. Liston, 977 A.2d 1089, 1096 (Pa. 2009) (Castille,

CJ., concurring)).

         Here, Defendant raises an IAC claim at the appeal level. Defendant has not,

however, indicated he has waived his right to pursue a PCRA claim. As

Defendant's IAC claim is procedurally inappropriate at this stage of his case, this

Court dismisses the issue.

         III.   Abuse of Discretion in Sentencing

         The trial court is afforded "great deference as it is the sentencing judge that

is in the best position to view the defendant's character, displays of remorse,

defiance, or indifference, and the overall effect and nature of the crime."

Commonwealth v. Allen, 24 A.3d 1058, 1065 (Pa. Super. 2011). A sentencing

court:

                [M]ust follow the general principle that the sentence
                imposed should call for confinement that is consistent
                with the protection of the public, the gravity of the
                offense as it relates to the impact on the life of the victim
                and on the community, and the rehabilitative needs of the
                defendant.

 Commonwealth v. Mouzon, 812 A.2d 617, 620 (Pa. 2002) (quoting 42 Pa.C.S.A. §

 9721(b)). "The sentencing court, however, must also consider the sentencing

 guidelines." Commonwealth v. Hardy, 939 A.2d 974, 980 (Pa. Super. 2007).

         Depending on the offense gravity score, a court may impose an aggravated

 sentence that is a specified amount of time longer than the top of the standard

                                                                                           19
range sentence, upon a determination that aggravating circumstances are present.

204 Pa. Code§ 303.13(a)(l)-(4).   In Commonwealth v. Mouzon, the Supreme

Court explained:

             Essentially, the Guidelines set forth a recommended
             standard range ("standard range") in which any given
             defendant's sentence should fall, based on the gravity of
             the defendant's offense and the defendant's prior record.
             For each standard range that corresponds to a particular
             offense committed by a particular defendant, the
             Guidelines also sets forth an "aggravated range" and a
             "mitigated range" to guide the court should it believe that
             a sentence in the standard range would be inappropriate
             under the circumstances.

Mouzon, 812 A.2d at 620 n.3. "[A] trial court judge has wide discretion in

sentencing and can, on the appropriate record and for the appropriate reasons,

consider any legal factor in imposing a sentence in the aggravated range." Hardy,

939 A.2d at 980 (quoting Commonwealth v. Stewart, 867 A.2d 589, 593 (Pa.

 Super. 2005)). "When the court imposes an aggravated or mitigated sentence, it

 shall state the reasons on the record and on the Guideline Sentence Form". 204 Pa.

 Code§ 303.13(c).

       In the instant case, Defendant avers that the sentence imposed by this Court

 was excessive, beyond that which was recommended by Franklin County

 Probation, and an abuse of the Court's discretion. (Concise Statement). Defendant

 further argues that:



                                                                                    20
            [T]he Court sentenced [Defendant] to a sentence far
            above that recommended by the Franklin County
            Probation Office, and failed, with out [sic] reasonable
            basis, to make Williams eligible for a boot camp and/or
            State SIP sentence, both of which [Defendant] qualified
            for and to which a sentence to would have been in his
            and society's best interest.

(Id.). Defendant's claims challenge the discretionary aspects of his sentences.

      The Conspiracy charge carries a maximum sentence of 15 years ( 180

months), with a standard range of21 to 27 months. The Criminal Use of a

Communication Facility charge carries a maximum sentence of 7 years (84

months), with a standard range of 12 to 18 months. This Court sentenced

Defendant to 27 to 60 months in SCI on the Conspiracy charges, and 18 to 60

months in SCI on the charge for Criminal Use of a Communication Facility to run

at the expiration of the sentence for Conspiracy.

       The Court had the opportunity to diligently and properly review a pre-

sentence report prior to each sentencing. This Court also listened to Defendant's

apologetic and explanatory statements at the sentencing hearing. At the November

9, 2016 sentencing hearing, this Court stated:

             [Court]: Mr. Williams, you are here today to be
             sentenced on two charges for which you were convicted
             by a jury. Count 1 is possession with intent to deliver
             heroin. The gravity score is 6. Your prior record score is
             5, making the standard range 21 to 27 months. Count 2
             conviction, criminal use of a communication facility.
             Gravity score of 5. Prior record score of 5, making the
             standard range 12 to 18.

                                                                                    21
I have reviewed the presentence report prepared in this
matter, the sentencing memorandum submitted by the
Commonwealth, having heard what the attorneys have
said, as well as yourself in determining what your
sentence should be. Contained within the presentence
report is your prior criminal record. You had a juvenile
adjudication that is not factored into your score, but I
know it was drug related. So, from the time you were a
juvenile, you had drug issues.

Then, you had a receiving stolen property conviction in
Montgomery County, Pennsylvania and received a
sentence of probation, that was in 1998. The same year
you had probation without verdict on a drug charge in
Philadelphia. One year later, conviction in Philadelphia,
felony possession with intent to deliver. You received a
sentence of incarceration in their local jail.

2005, in Maryland a delivery charge. You received a
sentence of incarceration at that time. And then 2009,
another felony possession with intent to deliver in
Maryland and received a sentence of incarceration as
well. And, I will note that you were on supervision in
Maryland at the time you committed this offense. As you
previously stated ... that you were out about three years
before these charges were brought against you and you
have stated both in the presentence report and here today.
You admit you missed [sic] up, the person called you for
drugs and you sent out your brother to deliver it.

 [Defendant]: Yes.

 [Court]: Have you ever held a job where you received a
 paycheck?

 [Defendant]: Yes.

 [Court]: What did you do in your life?


                                                             22
           [Defendant]: I was at Goodwill in 2013, and then I went
           to blast stone at T.R. Wills in Chambersburg, and then I
           was at Hard Times Cafe in Hagerstown, and then I just
           was at Mattress Warehouse in Hagerstown.

           [Court]: Do you understand there is another option to
           earning money than illegally selling drugs and profiting
           off the addictions of others?

            [Defendant]: Yes.

           [Court]: If you were before me with a first time offense,
           maybe even a second time offense, the pleas of your
           attorney would probably be accepted better by the Court.

            [Defendant]: Yes.

            [Court]: But, sir, your history shows that you have
            chosen to be a drug dealer your entire adult life.

            [Defendant]:   Yes.

            [Court]: Therefore, your sentence will not afford you the
            opportunity for any kind of consideration for reduction in
            sentence to go into a boot-camp program. You will be
            RRRI eligible, because you do not have a sentence that
            would disqualify you within your criminal history. So,
            these are the sentences that I am going to impose.

(T.P. Sentencing, November 9, 2016, at 11-15).

      It is evident that this Court reviewed the sentence summary sheet giving due

consideration the facts and character of Defendant's crimes. Thus, the record

necessarily rejects the Defendant's claim that the Court's sentence was imposed

without a reasonable basis. The Court considered the pleas of Defendant, and

Defendant's counsel. However, the Court fashioned a sentence it deemed fitting
                                                                                  23
given Defendant's criminal history, as well as relevant statutory authority. Review

of the applicable record and statutory authority definitively shows that this Court

properly applied the guidelines in question when arriving at the Defendant's

sentence. For all of these reasons, Defendant's abuse of discretion claim is

meritless.

                                  CONCLUSION

       For the abovementioned reasons, the verdicts are supported by sufficient

evidence, and they are not against the weight of the evidence. Furthermore, the

Court did not abuse its discretion in the various sentences it imposed upon

Defendant. This Court dismisses the IAC claims, as they are procedurally

inappropriate at this stage in the case. Furthermore, the Court did not abuse its

discretion in the various sentences it imposed upon Defendant. Accordingly, this

Court respectfully requests the Superior Court affirm the various sentences

imposed on Defendant as a result of his guilty pleas and the jury verdict which

found him guilty of the remaining counts, and the underlying sentencing scheme

fashioned after due consideration of all relevant factors, and dismiss the above

captioned appeals.




                                                                                      24
          IN THE COURT OF COMMON PLEAS OF THE 39™ JUDICIAL

    DISTRICT OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH


Commonwealth of Pennsylvania,                         Criminal Action

                vs.                                   No. 658-2016
                                                                        J
Donell Williams,
     Defendant                                        HonorableCarol L. Van Horn


                                        ORDER OF COURT

      AND NOW THIS ~DAY                        OF February,2017, pursuant to Pa. R.A.P.
1931 (c),

      IT IS HEREBY ORDERED THAT the Clerk of Courts of Franklin
County shall promptly transmit to the Prothonotary of the Supreme Court the
record in this matter along with the attached Opinion sur Pa. R.A.P. 1925(a).

      Pursuant to Pa. R. Crim. P. 114, the Clerk of Courts shall immediately
docket this Opinion and Order of Court and record in the docket the date it was
made. The Clerk shall forthwith furnish a copy of the Opinion and Order a/Court,
by mail or personal delivery, to each party or attorney, and shall record in the
docket the time and manner thereof


                                                       By the Court,



                                                         Carol L.Van Hom, J.

copies:
Franklin County District Attorney's Office
tt~~~~       ~~~q.,         Counsel for Defendant




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