J-S66006-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

GABRIEL DOMONIC LEE,

                         Appellant                   No. 725 MDA 2014


    Appeal from the Judgment of Sentence Entered September 11, 2013
              In the Court of Common Pleas of Franklin County
            Criminal Division at No(s): CP-28-CR-0001914-2011


BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                    FILED OCTOBER 22, 2014

      Appellant, Gabriel Domonic Lee, appeals nunc pro tunc from the

judgment of sentence of 6-12 years’ incarceration, imposed after he was

convicted of selling 1.4 grams of cocaine to a police informant.     Appellant

contends that the verdict was against the weight of the evidence.         After

careful review, we affirm.

      The trial court summarized the facts adduced at trial as follows:

      The Commonwealth first presented testimony from Dustin Lamir.
      Lamir was working as a confidential informant for the Franklin
      County Drug Task Force. On that date, Lamir purchased cocaine
      from [Appellant], Gabriel Lee. He had known Lee at least one
      week prior to the transaction. Lamir first met Lee at a bar in
      Greencastle, where he lamented that he was new in town and
      did not know where he could "get anything." To this, Lee replied
      that anytime you need something, give me a call." Lee identified
      himself as "G," the name he went by on the street. Lamir then
      informed Detective Jason Taylor of his newly acquired source in
      preparation for a deal to be set up.
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        Lamir testified that he attempted to contact Lee by phone and
     text message, but received no reply. Lamir then ran into Lee
     again, and their business relationship took off from there. On
     October 3, 2011, Lamir called Lee and requested "an eight ball
     of cocaine."      The two men discussed the price of that
     commodity, which came out to $170.00. Lee instructed Lamir to
     contact him when he was in the area.

        Lamir met with Detective Taylor, where he was searched prior
     to the meeting with Lee. Lamir testified that his pockets were
     pulled inside out, he took his shoes off and Detective Taylor
     shook them, and he was patted down. Detective Taylor then
     provided Lamir with $170.00. Lamir called Lee, who told him to
     meet at Papa John's, located approximately 80-100 yards from
     Lee's residence, and is within sight of that residence. While
     Lamir was waiting at Papa John's, he attempted to call Lee at
     least three times but got no answer. Lee and his friend Mike
     Zolla then approached the Papa John's. Lee carried a dog with
     him. Lamir walked toward the two men and indicated that he
     had the money. Lamir testified that he pulled the money out
     and "Lee spit the cocaine from his mouth and we made the
     exchange." The cocaine was in a small plastic bag. After Lee
     handed the cocaine to Lamir, the three men proceeded to walk
     across the street towards the Papa John's. Lamir stated that the
     transaction took approximately two minutes.          After this
     encounter, Lee and Zolla walked up an alley next to the pizza
     shop. Lamir returned to Detective Taylor's vehicle, where he
     turned over the cocaine purchased from Lee.

        The Commonwealth next presented testimony from Officer
     Bryan Chappell of the Waynesboro Police Department. Officer
     Chappell has worked in law enforcement for thirteen years. In
     October of 2011, Officer Chappell was working as a detective
     with the Franklin County Drug Task Force. During his time
     there, he conducted approximately 50 drug investigations. On
     October 3, 2011, Officer Chappell assisted with the controlled
     drug buy in this case, setting up surveillance in a large SUV on
     South Carlisle Street. Officer Chappell watched Lamir walk
     South on S. Carlisle Street. He testified that he saw a golden car
     parked North on S. Carlisle Street against the curb. Out of that
     car emerged Lee and a second male, who was identified as Mike
     Zolla. Officer Chappell watched Lamir as he met with Lee and
     Zolla. Lee had a dog in his hand. Lee then went into his
     residence while Zolla remained outside with Lamir.          Officer
     Chappell was approximately a block and a half away from the

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     meeting, taking photographs with his camera.        He did not
     witness a "hand-to-hand" transaction between Lee and Lamir.
     Officer Chappell stated that he was 100 percent positive that he
     saw Lee meet with Lamir on October 3, 2011 for the transaction.

        The Commonwealth then presented testimony from Detective
     Jason Taylor, an investigator with the Franklin County Drug Task
     Force. Detective Taylor has worked in law enforcement for
     sixteen years, including over 1,000 drug investigations. He
     briefly described the role confidential informants play in drug
     investigations, explaining that they are involved in over 90
     percent of those investigations.        Throughout his career,
     Detective Taylor has been involved with approximately 100
     confidential informants.    He stated that Lamir became an
     informant in the summer of 2008 or 2009.

        Detective Taylor stated that the Task Force arranged a
     controlled cocaine purchase on October 3, 2011. Detective
     Taylor previously told Lamir to contact Lee and arrange the
     transaction. The purchase was set for around 3:30 p.m. Upon
     meeting Lamir, Detective Taylor searched him for money or
     contraband, after which he provided Lamir with the $170.00
     purchase money. The transaction was to take place in the area
     near the Papa John's on S. Carlisle Street, which was near Lee's
     residence. Lamir was equipped with a wire under his clothing.1
     Detective Taylor drove Lamir to the location, and watched him
     walk South down the street to meet Lee. He stated that the
     location was a little more than half a block from Lee's residence,
     which was in sight of the Papa John's. Detective Taylor was two
     blocks down the street from the transaction.
       1
        Detective Taylor testified that the quality of the recording
       was poor and it was difficult to hear the conversation
       between Lamir, Lee, and Zolla.

        After the drug buy, Lamir returned to Detective Taylor's
     vehicle and turned over the cocaine. Lamir stated that he
     purchased the drugs from Lee. Detective Taylor searched Lamir
     again and found no money or contraband on his person. The
     substance purchased was in a small plastic bag, in a white
     powdery form, which was later confirmed to be cocaine.2
     Detective Taylor was later recalled to testify by [Appellant],
     where he focused on the Task Force's procedure regarding the
     money used in controlled drug buys, and for weighing the drugs
     recovered.   Detective Taylor testified that, based on his


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      experience in drug investigations, he believed that Lee did have
      the ability to hold a bag of cocaine in his mouth while he spoke
      to an informant.
         2
            The Commonwealth also presented testimony from
         Robert Wagner, a retired Pennsylvania State Police forensic
         scientist. Mr. Wagner discussed the procedures for testing
         to determine if certain substances are drugs. He tested
         the substance purchased from the transaction in this case,
         and found the substance to be 1.4 grams of cocaine.

          The Court also heard testimony from [Appellant], Gabriel Lee.
      Lee stated that on October 3, 2011, he left his cell phone in
      Hagerstown, Maryland.      Lee presented conflicting testimony
      regarding his trip to Hagerstown.3 He testified that upon his
      return from Hagerstown, he found his friend Mike Zolla standing
      outside his residence. He stated that he was unaware that Lamir
      was on his way to meet him, and denied speaking to him that
      day. When he went inside his home, his fiancé asked him to
      take their dog out. M. Lee stated that when he came out of his
      house, he saw Lamir and Zolla talking, but "thought nothing of
      it" because the two gentlemen were friends. Lee stated that if
      Lamir had purchased drugs, it wasn't from him but from Zolla.
      Lee maintained that it was not his phone that Lamir called, and
      that he never sold Lamir any drugs.
         3
           For example, on cross-examination, he stated that he
         and Zolla went to Hagerstown together to visit his family.
         Lee then stated that Zolla knew people in Hagerstown. He
         later stated that someone dropped him and Zolla off at
         Lee's residence after going to Hagerstown.

Trial Court Opinion (TCO), 6/24/14, at 3-6 (citations omitted).

      The police filed a criminal complaint on October 7, 2011.           On

November 18, 2011, the Commonwealth filed a criminal information

charging Appellant with delivery of a controlled substance (cocaine), 35 P.S.

§ 780-113(a)(30). Appellant was subsequently tried at a non-jury trial held

on August 13, 2013, where he represented himself pro se with the

assistance of stand-by counsel.   The trial court found Appellant guilty the


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same day. On September 11, 2013, Appellant was sentenced to a term of

6-12 years’ incarceration, imposed consecutively to a sentence received in

an unrelated case.

      Appellant subsequently requested the appointment of counsel for the

filing of post-sentence motions and a direct appeal; however, that attorney

failed to file either on Appellant’s behalf.    Consequently, the trial court

reinstated Appellant’s direct appeal rights nunc pro tunc and appointed new

counsel by order dated April 8, 2014. That order did not expressly reinstate

Appellant’s post-sentence motion rights. Appellant then filed a timely notice

of appeal on April 28, 2014. Appellant also filed a timely Pa.R.A.P. 1925(b)

statement on May 16, 2014. The trial court issued its Rule 1925(a) opinion

on June 24, 2014.

      Appellant now presents the following question for our review:

      Did the trial court abuse its discretion in failing to find that the
      verdict [was] against the weight of the evidence in that the only
      evidence establishing that the drugs came from … Appellant[,]
      and not Michael Zolla[,] was the testimony of the [c]onfidential
      [i]nformant (CI)[,] despite an abundance of evidence and lack of
      evidence to the contrary?

Appellant’s Brief at 8.

      It is axiomatic that:

      [A] weight of the evidence claim must be preserved either in a
      post-sentence motion, by a written motion before sentencing, or
      orally prior to sentencing. Pa.R.Crim.P. 607; Commonwealth
      v. Priest, 18 A.3d 1235, 1239 (Pa. Super. 2011). Failure to
      properly preserve the claim will result in waiver, even if the trial
      court addresses the issue in its opinion. Commonwealth v.
      Sherwood, 603 Pa. 92, 982 A.2d 483, 494 (2009).


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Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012).

        Instantly, Appellant did not file a post-sentence motion preserving his

claim    that   the   verdict    was    against   the   weight   of   the   evidence. 1

Consequently, the issue has been waived. Lofton, 57 A.3d at 1273.




____________________________________________


1
   Appellant acknowledges that this claim was not preserved in a post-
sentence motion. Appellant’s Brief at 12 n.1. Appellant contacted the trial
court to confirm that the April 8, 2014 order reinstating his appeal rights did
not include reinstatement of his right to file post-sentence motions, despite
his desire to file such motions. Appellant argues that we should entertain
the claim because of this, and because the trial court addressed his weight
claim in its Rule 1925(a) opinion. Unfortunately, this is not possible. “An
allegation that the verdict is against the weight of the evidence is addressed
to the discretion of the trial court.” Commonwealth v. Widmer, 744 A.2d
745, 751-52 (Pa. 2000). Furthermore, “[a]ppellate 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.” Id. at 753.
Here, the trial court never exercised its discretion because it never ruled on
a properly raised weight-of-the-evidence claim. Thus, this Court does not
have a discretionary act to review.

       The trial court does not indicate, nor can we fathom, why it did not
reinstate Appellant’s post-sentence motion rights when it reinstated his
direct appeal rights, despite having found that Appellant was effectively
abandoned by his initial appellate counsel after that attorney “admitted that
she failed to file timely post-sentence motions or an appeal on behalf of her
client, resulting in a waiver of [Appellant]’s right to file an appeal.” TCO, at
2. However, the issue of the trial court’s failure to reinstate Appellant’s right
to file post-sentence motions was not challenged in an appeal from the order
reinstating Appellant’s direct appeal rights, and is not the subject of the
instant appeal.



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Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/2014




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