J-S36009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DETRICK S. DAWKINS

                            Appellant                 No. 1274 MDA 2015


           Appeal from the Judgment of Sentence September 9, 2014
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0003795-2012
                                          CP-22-CR-0004529-2012


BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY MUNDY, J.:                                 FILED MAY 05, 2016

        Appellant, Detrick S. Dawkins, appeals from the September 9, 2014

aggregate judgment of sentence of 27 to 54 months’ incarceration, imposed

by the trial court after Appellant was convicted of possession with intent to

deliver, and pled guilty to flight to avoid apprehension.1       Upon careful

consideration, we affirm.

        The trial court thoroughly detailed the facts of record, which we adopt

and incorporate herein. Trial Court Opinion, 10/19/15, at 2-7. In addition,

the trial court recounted the procedural posture of this case as follows.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 5126(a), respectively.
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                [Appellant] was charged at docket number
          4529-CR-2012 with possession with intent to deliver
          and possession of a firearm prohibited. A jury trial
          was held on these two offenses on August 14 and
          15, 2014. [Appellant] was found guilty of Count 1—
          possession with intent to deliver, and was found not
          guilty of Count 2 – possession of a firearm
          prohibited.

                At docket number 3795-CR-2012, [Appellant]
          entered into a negotiated plea agreement on
          September 9, 201[4]. Pursuant to such agreement,
          the Commonwealth withdrew Count 1 – escape, and
          [Appellant] pled guilty to Count 2 – flight to avoid
          apprehension, in exchange for a recommended
          sentence of twenty-one (21) to forty-two (42)
          months of imprisonment to run concurrent with the
          sentence received at docket number 4529-CR-2012.

                 Following [Appellant]’s guilty plea at docket
          3795-CR-2012, [Appellant] was sentenced as
          follows:     At docket 4529-CR-2012 – Count 1
          (possession with intent to deliver) – twenty-seven
          (27) to fifty-four (54) months of imprisonment (plus
          fine and costs). At docket 3795-CR-2012 – Count 2
          (flight to avoid apprehension) twenty-one (21) to
          forty-two (42) months of imprisonment (plus fine
          and costs), to run concurrently with the sentence
          imposed at docket 4529-CR-2012.

                On September 19, 2014, [Appellant], through
          his attorney, filed a post-trial motion to modify
          sentence and on September 22, 2014, filed a motion
          for time credit. Th[e trial c]ourt denied the motion
          to modify and granted [Appellant] time credit of 347
          days on docket 4529-CR-2012 and 206 days on
          docket 3795-CR-2012.

                [Appellant] filed a notice of appeal at docket
          4529-CR-2012 on October 22, 2014. On February
          23, 2015, the Superior Court dismissed the appeal,
          as no brief had been filed on [Appellant]’s behalf.

              On May 4, 2015, [Appellant] filed a pro se
          PCRA petition, and Jennifer E. Tobias, Esq. was


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              appointed as PCRA counsel. Attorney Tobias filed a
              supplemental     PCRA     petition   requesting  that
              [Appellant]’s appellate rights be reinstated nunc pro
              tunc. Th[e trial c]ourt granted the request, and a
              notice of appeal was filed on July 24, 2015.

Trial Court Opinion,2 10/19/15, at 1-2 (footnote omitted).

       On appeal, Appellant presents four issues for review.

              1. Whether the trial court erred by denying the
                 Appellant’s suppression motion?

              2. Whether the Appellant’s constitutional rights were
                 violated when the trial court denied the Appellant
                 his right to confront and cross-examine the
                 confidential informant (CI)?

              3. Whether the Commonwealth failed to provide
                 sufficient evidence at trial to support the guilty
                 verdict on the charge of PWI[D]?

              4. Whether the verdict was against the weight of the
                 evidence presented at trial?

Appellant’s Brief at 5.

       In his first issue, Appellant asserts that the trial court erred in denying

his suppression motion.        Our review of a trial court’s suppression ruling is

guided by the following.

                    Our standard of review in addressing a
              challenge to the denial of a suppression motion is
              limited to determining whether the suppression
              court’s factual findings are supported by the record
              and whether the legal conclusions drawn from those
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2
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.




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           facts are correct.      Because the Commonwealth
           prevailed before the suppression court, we may
           consider only the evidence of the Commonwealth
           and so much of the evidence for the defense as
           remains uncontradicted when read in the context of
           the record as a whole. The suppression court’s legal
           conclusions are not binding on an appellate court,
           whose duty it is to determine if the suppression court
           properly applied the law to the facts. Thus, the
           conclusions of law of the courts below are subject to
           our plenary review. Commonwealth v. Jones, 605
           Pa. 188, 988 A.2d 649, 654 (2010) (citations,
           quotations,   and    ellipses   omitted).   Moreover,
           appellate courts are limited to reviewing only the
           evidence presented at the suppression hearing when
           examining a ruling on a pre-trial motion to suppress.
           See In re L.J., 622 Pa. 126, 79 A.3d 1073, 1083–
           1087 (2013).

Commonwealth v. Mathis, 125 A.3d 780, 783 (Pa. Super. 2015), appeal

granted, --- A.3d ---, 2016 WL 1247784 (Pa. 2016).

     Instantly, Appellant asserts that “there were discrepancies concerning

the basis for the search warrant, along with withholding of relevant

information to the judge signing the warrant.”       Appellant’s Brief at 11.

Appellant specifically contends that the judge signing the warrant “should

have been told that the CI had recently been convicted of theft, and the

Commonwealth had promised to nolle pros the charge in exchange for his

cooperation.” Id. Appellant maintains that the confidential informant had

“a motive to provide false information to the police regarding the drug

transactions.” Id. at 12.

     The   Commonwealth     responds   that   “[t]he   record   supports   the

suppression court’s finding that the search warrant was based upon probable

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cause when the Commonwealth … relied upon the observations of police

officers who witnessed the CI make a phone call for a drug deal and then

witnessed that CI go into the home where the arranged deal took place.”

Commonwealth’s Brief at 9.

     The trial court, as the finder of fact, explained its agreement with the

Commonwealth’s position as follows.

              It is the defense’s position that the lack of reliable
           information given to Judge Clark regarding the CI
           undermined the probable cause determination as to
           the CI’s veracity and vested interest. The standard
           for evaluating probable cause is as follows:

                 [W]hether probable cause exists for the
                 issuance of a search warrant is the totality of
                 the circumstances test. … A magistrate is to
                 make a practical common-sense decision
                 whether, given all the circumstances set forth
                 in the affidavit before him, including the
                 veracity and basis of knowledge of persons
                 supplying hearsay information, there is a fair
                 probability that contraband or evidence of a
                 crime will be found in a particular place.

           Commonwealth v. Hawkins, 45 A.3d 1123, 1127
           (Pa. Super. 2012) (quoting Commonwealth v.
           Gindlesberger, 706 A.2d 1216, 1219 (Pa. Super.
           1997) (citations omitted)).      In determining the
           validity of a search warrant, the “reviewing court is
           limited to supporting the issuing authority’s decision
           to    approve    the   warrant.”      Id.     (quoting
           Commonwealth v. Cramutola, 450 Pa. Super.
           345, 676 A.2d 1214, 1216 (1996)).

                 Pursuant to the totality of the circumstances
           test, th[e trial c]ourt concludes that there was
           adequate information to provide a basis for
           concluding that probable cause was established to
           issue the search warrant. There were two controlled
           buys that were conducted at the 316 Hummel Street

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            home, the subject of the search warrant. The two
            buys were conducted while an officer observed the
            CI entering the home on both occasions, and on
            each occasion he had been searched before entering
            the residence. … Based on the controlled buys,
            there was clearly a fair probability that evidence of a
            crime would be found at 316 Hummel Street.

Trial Court Opinion, 10/19/15, at 7-8.

      Our review of the record confirms the factual findings and legal

conclusions of the trial court.     Thus, we find no merit to Appellant’s

suppression issue.

      In his second issue, Appellant argues that his constitutional rights

were violated when the trial court denied him the right to confront and

cross-examine the confidential informant.    Before addressing the merits of

this argument, we note that Appellant cites just one case, Barber v. Page,

390 U.S. 719, 725 (1968), which generally states that “the right to

confrontation is basically a trial right,” but is otherwise inapplicable to the

specific circumstances of Appellant’s case. Appellant’s Brief at 13-14. It is

well-settled that we will not consider issues where an appellant fails to cite

to any legal authority or otherwise develop the issue. Commonwealth v.

McLaurin, 45 A.3d 1131, 1139 (Pa. Super. 2012), appeal denied, 65 A.3d




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413 (Pa. 2013). We therefore find that Appellant has waived this argument

and decline to address it further.3

       With regard to Appellant’s third issue, where Appellant asserts that the

Commonwealth failed to present sufficient evidence to support his conviction

of possession with intent to deliver, the Commonwealth asserts waiver. The

Commonwealth states that Appellant failed to specifically allege “the

elements of PWID that the Commonwealth failed to prove at trial” in his

Pennsylvania       Rule     of    Appellate      Procedure   1925(b)   statement.

Commonwealth’s Brief at 17. The Commonwealth cites Pennsylvania Rule of

Appellate Procedure 1925(b)(4)(ii), and Commonwealth v. Tyack, 128

A.3d 254 (Pa. Super. 2015) to support its contention.

              If [an] appellant wants to preserve a claim that the
              evidence was insufficient, then the 1925(b)
              statement needs to specify the element or elements
              upon which the evidence was insufficient. This Court
              can then analyze the element or elements on appeal.
              Where a 1925(b) statement does not specify the
              allegedly unproven elements, the sufficiency issue is
              waived on appeal.

Commonwealth’s Brief at 18, citing Tyack, supra at 260.

       Our review of Appellant’s Statement of Matters Complained of on

Appeal Pursuant to Pa.R.A.P. 1925(b) confirms in part the Commonwealth’s
____________________________________________


3
  We nonetheless acknowledge the trial court’s statement that “[a]lthough
[the trial court’s] May 16, 2013 order denied [Appellant’s] motion to compel
disclosure of the identity of the CI, the CI was actually identified prior to
trial. Therefore, the defense could have called the CI as a witness if his
whereabouts were known.” Trial Court Opinion, 10/19/15, at 8 n.2.



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averment that Appellant failed to “specifically allege in his statement of

errors the elements of PWID that he was going to challenge on appeal.” Id.

at 20.   In the body of his Rule 1925(b) statement, Appellant simply asks,

“Whether the Commonwealth failed to provide sufficient evidence at trial to

support the guilty verdict?” Statement of Matters Complained of on Appeal

Pursuant to Pa.R.A.P. 1925(b), 8/20/15, at 1. However, Appellant attached

a more detailed “Argument” to his Rule 1925(b) statement, which includes a

paragraph discussing our appellate standard of review, as well as Appellant’s

assertion that “since there was no evidence or testimony concerning the

elements needed for PWI[D] … the elements have not been proven beyond a

reasonable doubt.” Id. at 5, ¶ 3. Because we interpret this last sentence as

Appellant claiming there was no evidence at all to support any of the

elements to support his conviction, we address his sufficiency argument on

the merits. In doing so, we find it to be unavailing.

      There is sufficient evidence to sustain a conviction when the evidence

admitted at trial, and all reasonable inferences drawn therefrom, viewed in

the light most favorable to the Commonwealth as verdict-winner, are

sufficient to enable the fact-finder to conclude that the Commonwealth

established all of the elements of the offense beyond a reasonable doubt.

Commonwealth        v.   Markman,     916    A.2d   586,   597   (Pa.   2007).

Furthermore, the entire trial record is evaluated and all evidence received




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against the defendant is considered, being cognizant that the trier of fact is

free to believe all, part, or none of the evidence. Id.

      Here, Appellant was convicted of possession with intent to deliver a

controlled substance, defined as follows.

            (30) Except as authorized by this 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.

35 P.S. § 780-113(a).

      Appellant claims “there was not enough evidence to prove that [he]

possessed the cocaine or that he was aware of the cocaine” and references

discrepancies in the trial testimony. Appellant’s Brief at 15-17. Our review,

however, indicates that Appellant’s sufficiency claim is unsupported by the

record.   In addition to the testimony of Officers Stewart and Flythe, who

both participated in the two controlled buys that occurred on May 10 and 21

of 2012, the trial court accurately referenced the following.

            The drug buys involving [Appellant] took place at
            316 Hummel Street. A search of that home yielded
            a cell phone with photos of [Appellant] with a
            number matching the one the CI called for a drug
            buy, bags of crack cocaine and powder cocaine,
            baggies, a digital scale, razor blades, … a large
            amount of cash, a piece of mail with [Appellant’s]
            name and the 316 Hummel Street address, a social
            security card with [Appellant’s] name, and a
            baggage check tag with [Appellant’s] last name. The
            circumstantial evidence shows that [Appellant] was

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            in constructive possession of the drugs at issue. The
            power and intent to control the contraband was
            evident from the totality of the circumstances.
            Vargas, [108 A.3d 858 (Pa. Super. 2014) (en banc),
            appeal denied, 121 A.3d 496 (Pa. 2015)].

                  The record also amply supports [Appellant’s]
            intent to deliver the controlled substances. The large
            sums of cash, a scale, baggies, and other drug
            paraphernalia found at 316 Hummel Street is
            indicative of an intent to deliver. Furthermore, the
            expert testimony provided by Detective Goshert
            revealed that, given a factual scenario where the
            aforementioned items were found, his conclusion
            would be that the cocaine at issue was possessed
            with the intent to deliver.

Trial Court Opinion, 10/19/15, at 11.

      Based on the foregoing, there was sufficient evidence for the jury to

convict Appellant of possession of a controlled substance with the intent to

deliver, such that Appellant’s third issue is without merit.

      In his fourth and final issue, Appellant contends that his conviction for

possession of a controlled substance with the intent to deliver was against

the weight of the evidence. Initially, we note that pursuant to Pennsylvania

Rule of Criminal Procedure 607, a claim that the verdict was against the

weight of the evidence shall be raised 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 before sentencing; or (3) in a post-sentence

motion.

      Our review of the August 15, 2014 trial notes of testimony following

Appellant’s jury conviction, as well as the September 9, 2014 notes of

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testimony from sentencing, indicate that Appellant did not make an oral

motion for a new trial based on the weight of the evidence.           Further,

although the record shows that Appellant filed a post-sentence motion to

modify sentence, in that motion he solely requested that his sentences run

concurrently. Appellant’s Post-Trial Motion to Modify Sentence, 9/19/14, at

1.4   Likewise, Appellant filed a motion for time credit, but did not raise a

weight claim. Motion for Time Credit, 9/23/14.5 Accordingly, we find that

Appellant’s weight claimed is waived.          Commonwealth v. Thompson, 93

A.3d 478, 490 (Pa. Super. 2014) (the failure to properly preserve a weight

of the evidence claim will result in waiver, even if the trial court addresses

the issue in its opinion).

       In sum, we conclude that Appellant’s issues are either without merit or

waived, and thus affirm the September 9, 2014 judgment of sentence.




____________________________________________


4
 The trial court denied Appellant’s post-sentence motion to modify sentence
by order dated September 22, 2014.
5
 The trial court granted Appellant’s motion for time credit by order dated
September 26, 2014.



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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/5/2016




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