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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                     v.                    :
                                           :
JAMES E. GREER, SR.,                       :          No. 573 MDA 2017
                                           :
                          Appellant        :


          Appeal from the Judgment of Sentence, February 28, 2017,
                 in the Court of Common Pleas of York County
              Criminal Division at No. CP-67-CR-0007036-2015


BEFORE: LAZARUS, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED APRIL 10, 2018

        James E. Greer, Sr., appeals from the February 28, 2017 judgment of

sentence entered in the Court of Common Pleas of York County following his

conviction in a jury trial of possession with intent to deliver a controlled

substance (heroin) (“PWID”).1         The trial court imposed a sentence of

imprisonment of 11½ to 23 months. We affirm.

        The trial court provided the following factual history:

              On January 19, 2017, Officer Zachary Pelton took
              the stand and testified that this case involved a
              confidential informant (hereinafter: CI) who received
              payment. At Pelton’s instruction, the CI placed a
              phone call to 717-758-[XXXX], which was a number
              supplied by the CI. Officer Pelton heard a male voice
              on the other end of the phone call and, at the
              conclusion of that call, was left with the expectation
              that the CI was to proceed to Li’s Kitchen to

1   35 P.S. § 780-113(a)(30).
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          purchase heroin. The CI referred to the caller by the
          street name of “Supreme.” Officer Pelton proceeded
          to search the CI’s pockets and any other places in
          which small objects could be secreted. No strip
          search was performed because, as Officer Pelton
          opined, if the CI were to have reached any place
          intimate then that would have raised red flags for
          the officers. Following the search, the CI was turned
          over to Detective Shaffer and, up to this point, the
          CI was never out of Pelton’s view or control. Shaffer
          provided official funds and transported [sic] the meet
          location.    Pelton also proceeded to the location
          where he set up surveillance. Despite having a clear
          and unobstructed view, Officer Pelton never saw the
          CI meet with anyone, nor did he observe the CI;
          however, after the operation, Detective Shaffer
          turned over $20.00 of official funds and 2 yellow
          glassine baggies containing heroin.         The parties
          stipulated that, if called to testify, Nicole Blasovich,
          of the Pennsylvania State Bureau of Police Forensic
          Services, would testify that the baggies contained
          heroin.     No fingerprinting or DNA analysis was
          performed in this case and the CI and Detective
          Shaffer were not wearing gloves. Furthermore, the
          initiating phone call was not recorded, nor was the
          CI wearing a wire.

          On cross-examination, Officer Pelton testified that it
          was his believe [sic] that the CI, an addict, was clean
          at the time of the transaction, but that drug testing
          was not performed to confirm this. Additionally, it
          was    established      on    cross-examination    that
          [a]ppellant is not “Supreme[.]” The phone that was
          called by the CI was believed to belong to
          Darryl Austin who is “Supreme.”         Finally, during
          cross, Officer Pelton testified that he had made sure
          there was no money on the CI before the CI was
          supplied with official funds.

          The next witness to take the stand was
          Detective Andrew Shaffer who testified that his role
          was to transport the CI during the operation. Having
          received the CI from Officer Pelton following the
          search of the CI, Shaffer stated that the CI was


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          never out of his control. Shaffer gave the CI $40.00
          of    official funds.[Footnote    2]   Shaffer   then
          transported the CI to the meet location in Shaffer’s
          vehicle, which was searched prior to the operation.
          Once on scene and the CI was released from
          Shaffer’s vehicle, Shaffer was able to see the CI
          walking the whole way. Detective Shaffer told the
          jury that the CI was observed at all times by himself
          or Detective Nadzom. Detective Shaffer also told the
          jury that he never observed the CI to meet anyone
          else, pick anything up off of the ground, or shift his
          clothing while proceeding to and returning from the
          meeting.       Shaffer did not see the actual
          hand-to-hand exchange. However, upon the CI’s
          return to Detective Shaffer, the CI handed over
          2 baggies of suspected heroin and $20.00 of the
          $40.00 that Shaffer had previously given to the CI.
          Finally, Detective Shaffer stated that the CI was
          never out of his control before or after Shaffer
          turned over the suspected heroin to Officer Pelton.

               [Footnote 2] Earlier in his testimony,
               Detective Shaffer reported that he had
               given the CI $20.00 of official funds.
               However, at a later point in his
               testimony, Shaffer stated that this was a
               mistake and he had initially given the CI
               $40.00 of official funds.

          The third and final Commonwealth witness was
          Detective Scott Nadzom who testified that he
          performed surveillance for this buy-walk. Nadzom
          stated that he had a clear and unobstructed view of
          Li’s Kitchen. Nadzom testified that Shaffer advised
          him over the radio when the CI exited the vehicle
          and, thereafter, Nadzom observed the hand-to-hand
          transaction between the CI and [a]ppellant.
          Detective Nadzom stated that the only person the CI
          had contact with was [a]ppellant. In fact, Nadzom
          never saw the CI meet with anyone else, pick
          anything up, or fuss about his own clothing at any
          point during the operation. According to Nadzom,
          the CI was under constant observation by law
          enforcement. Nadzom then introduced photos he


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            had taken of [a]ppellant on the day in question.
            Nadzom stated that the photos were only taken for
            identification purposes and that he observed the
            hand-to-hand transaction with his naked eyes and
            binoculars. On cross-examination, Nadzom admitted
            that he never saw actual packets passed between
            [a]ppellant and the CI.

Trial court opinion, 9/6/17 at 2-5 (citations to notes of testimony omitted).

      The trial court set forth the following procedural history:

            On January 20, 2017, a jury of [a]ppellant’s peers
            found him guilty of [PWID]. On February 28, 2017,
            [a]ppellant was sentenced to eleven-and-one-half to
            twenty[-]three months of incarceration plus the
            costs of prosecution. On March 1, 2017, Jennifer M.
            Smith was appointed to represent [a]ppellant for
            purposes of appeal. On March 30, 2017, [a]ppellant
            filed a Notice of Appeal of the Sentence of
            February 28, 2017. By way of an Order docketed on
            April 3, 2017, pursuant to the Pennsylvania Rules of
            Appellate Procedure, Rule 1925(b), [a]ppellant was
            directed to file a statement of matters complained of
            on appeal. [] Appellant filed his manifestly untimely
            Statement of Errors Complained of Pursuant to
            1925(b) on June 28, 2017. We nonetheless treat
            this filing as timely in light of Attorney Smith’s
            post-sentencing appointment and the unavailability
            of the trial transcript until the period for a timely
            statement of matters had already lapsed.             The
            [c]ourt is all too aware of the difficulty occasioned by
            familiarizing oneself with a case via a cold transcript.

Id. at 1-2 (footnote 1 omitted). The record reflects that the trial court filed

its Rule 1925(a) opinion on September 6, 2017.

      Appellant raises the following issues for our review:

            I.    Whether      the   Commonwealth         presented
                  sufficient evidence to support         appellant’s
                  delivery of heroin conviction?



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            II.    Whether the weight of the evidence presented
                   by the Commonwealth was sufficient to
                   support    appellant’s delivery  of   heroin
                   conviction?

Appellant’s brief at 5 (full capitalization omitted).

      Appellant first challenges the sufficiency of the evidence to sustain his

PWID conviction. It is well settled that when challenging the sufficiency of

the evidence on appeal, that in order to preserve that issue for appeal, an

appellant’s Rule 1925(b) statement must specify the element or elements

upon which the evidence was insufficient. Commonwealth v. Gibbs, 981

A.2d 274, 281 (Pa.Super. 2009), appeal denied, 3 A.3d 670 (Pa. 2010)

(citation and internal quotation marks omitted).

      In his Rule 1925(b) statement, appellant frames his sufficiency

challenge as follows: “Whether there was sufficient evidence presented at

trial for a conviction.”   (Appellant’s “statement of errors complained of on

appeal pursuant to 1925(b),” 7/28/17 at 1, ¶ 1 (full capitalization omitted).)

Because appellant failed to specify the element or elements upon which he

now claims the evidence was insufficient, appellant waives this issue on

appeal. See Gibbs, 981 A.2d at 281.




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      Nevertheless, we note that a reading of appellant’s eight-sentence

argument on this issue2 reveals that appellant challenges the credibility of

the police officers involved in the undercover operation. (Appellant’s brief at

9.)   In so doing, appellant challenges the weight of the evidence, not its

sufficiency. See, e.g., Commonwealth v. Wilson, 825 A.2d 710, 713-714

(Pa.Super. 2003) (a review of the sufficiency of the evidence does not

include a credibility assessment; such a claim goes to the weight of the

evidence); Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa.Super.

1997) (the fact-finder makes credibility determinations, and challenges to

those determinations go to the weight of the evidence, not the sufficiency of

the evidence).

      In his second issue on appeal, appellant raises a weight of the

evidence claim.    In order to raise a weight claim on appeal, however,

Pennsylvania Rule of Criminal Procedure 607 requires an appellant to raise

the claim with the trial judge in a motion for a new trial “(1) orally, on the

record, at any time before sentencing; (2) by written motion at any time




2  We further note that appellant failed to provide any record citations to
support his claim. Notwithstanding appellant’s failure to preserve this issue
in his Rule 1925(b) statement which resulted in waiver of the issue on
appeal, appellant’s failure to provide record citations to support his claim
would also result in waiver.             See Pa.R.A.P. 2119(c); see also
Commonwealth v. Einhorn, 911 A.2d 960, 970 (Pa.Super. 2006)
(reiterating that an appellate brief must provide record citations and
citations to any relevant supporting authority, that this court will not become
the counsel for an appellant, and that this court will not consider issues that
are not fully developed in the brief (citation omitted)).


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before sentencing; or (3) in a post-sentence motion.” Pa.R.Crim.P. 607(A).

“The purpose of this rule is to make it clear that a challenge to the weight of

the evidence must be raised with the trial judge or it will be waived.”

Pa.R.Crim.P. 607, comment.

      Our review of the certified record before us reveals that appellant

failed to raise his weight claim with the trial court in a motion for a new trial

orally, on the record, prior to sentencing; by written motion prior to

sentencing; or in a post-sentence motion. Accordingly, appellant waives his

weight claim on appeal.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/10/2018




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