J-S53006-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JERMAINE SAMUEL, :
:
Appellant : No. 1546 WDA 2013
Appeal from the Judgment of Sentence April 12, 2013,
Court of Common Pleas, Blair County,
Criminal Division at No(s): CP-07-CR-0000667-2012
and CP-07-CR-0002674-2011
BEFORE: DONOHUE, OLSON and PLATT*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED SEPTEMBER 29, 2014
Jermaine Samuel (“Samuel”) appeals from the judgment of sentence
entered following his convictions of numerous counts of possession with
intent to deliver, criminal use of a communication facility, dealing in unlawful
proceeds and corrupt organizations.1 He raises eight issues in this appeal.
Following our review, we conclude that four of these issues have been
waived, one is moot and the rest are without merit. Accordingly, we affirm.
Samuel’s convictions are the result of an investigation by the Office of
the Attorney General of Pennsylvania into an operation in which Samuel and
multiple other people conspired to bring large quantities of cocaine from
Baltimore to Pennsylvania for distribution in Altoona. The investigation
included the use of confidential informants and multiple means of electronic
1
35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 7512(a), 5111, 911(b)(3).
*Retired Senior Judge assigned to the Superior Court.
J-S53006-14
surveillance, including body wires on the confidential informants and
wiretaps and pen registers on at least four telephone numbers. The
investigation resulted in 12 arrests. During his week-long trial, evidence
established that Samuel coordinated and received quantities of cocaine from
Maryland, warehoused them in an office above a bar in Altoona, cut the
drugs and repackaged them for sale to particular street-level dealers.
Samuel was convicted of the crimes listed above and sentenced to an
aggregate term of 46½ to 103 years of incarceration. On April 22, 2013,
Samuel filed a timely post-sentence motion. The trial court did not rule on
Samuel’s post-sentence motion within 120 days of the date it was filed, and
so it was effectively denied by operation of law.2 This appeal follows.3
Samuel raises the following issues for our review, which we have
reordered for purposes of our discussion:
1. Whether the trial court erred in denying Samuel’s
[o]mnibus [p]re-[t]rial [m]otion, which sought the
suppression and exclusion of the contents of all
wire, electronic, and/or oral communications, and
evidence derived therefrom, relative to the non-
2
The order denying Samuel’s post-trial motion was filed on December 3,
2013, after Samuel filed his notice of appeal to this Court. This is improper,
and as such, we could quash Samuel’s appeal. See Commonwealth v.
Borrero, 692 A.2d 158 (Pa. Super. 1997) (holding that the entry of an order
denying timely-filed post-sentence motions is a prerequisite to our exercise
of our jurisdiction). However, the trial court eventually entered the proper
order. In this instance, we will deem done what should have been done and
will not quash the appeal for this reason. See Pa.R.A.P. 902.
3
The trial court did not order Samuel to file a Pa.R.A.P. 1925(b) statement
of errors complained of on appeal.
-2-
J-S53006-14
consensual interceptions of the telephone
numbers the Commonwealth associated with
Samuel?
2. Whether there was sufficient evidence to sustain
the jury’s finding of guilt with respect to each
count of which Samuel was convicted?
3. Whether the trial court erred in permitting the
Commonwealth to present cumulative, prejudicial,
and irrelevant evidence of ‘historical controlled
purchases’ in which Samuel had no involvement?
4. Whether the trial court erred in failing to grant
Samuel’s continuing objection that the
Commonwealth failed to properly authenticate the
text messages allegedly authored by Samuel?
5. Whether the trial court erred in denying Samuel’s
[p]etition for [r]elease on [n]ominal [b]ail?
6. Whether the trial court erred in its discretionary
aspects of sentencing; in particular, whether the
trial court erred in failing to consider certain
mitigating factors, and whether the trial court
abused its discretion in running all periods of
incarceration consecutive [sic], resulting in what
Samuel submits is a life sentence of
incarceration?
7. Whether the trial court erred in concluding at the
time of sentencing that the Commonwealth
preponderantly proved the weights of the
controlled substances attributable to the following
counts: 1, 5, 8, and 9 of CR 667-2012; and count
1 of CR 2674-2011; and whether the trial court
engaged in an improper procedure in determining
that the Commonwealth established the requisite
weights of controlled substances, thus implicating
the legality of Samuel's sentence?
8. Whether the trial court erred in allowing the
Commonwealth to amend the criminal information
-3-
J-S53006-14
filed against Samuel, which had the effect of
back-dating Samuel’s alleged criminal
involvement in this matter, where the trial court
erroneously relied upon the decisions of another
trial court judge relative to other defendants in
the overall investigation?
Appellant’s Brief at 6-7.
We first consider Samuel’s challenge to the trial court’s denial of his
suppression motion. Samuel argues that the Commonwealth’s applications
for wiretaps on two telephone numbers were “impermissibly ‘successive’ and
non-specific with regard to Samuel in that [they] were not based upon ‘new
evidence’ different from and in addition to information in support of previous
Authorization Orders;” that “the [a]pplications for the telephone numbers
associated with Samuel were [not] particularized with respect to Samuel”
and that “the Commonwealth failed to show that it employed reasonable
investigative techniques specific to Samuel.” Appellant’s Brief at 15.
Despite these allegations, Samuel fails to develop his argument by
identifying the particular wiretap applications upon which he bases this
claim, much less where in the record they can be located. See Pa.R.A.P.
2119(c) (“If reference is made to … any [] matter appearing of record, the
argument must set forth … a reference to the place in the record where the
matter referred to appears.”). He also fails to discuss meaningful authority
-4-
J-S53006-14
in support of his claims.4 Instead, he “urges this Court to engage in a
comparative analysis of the facts contained in the applications” to “disclose[]
the glaring similarities of the evidence utilized in all of the applications[.]”
Id. at 16.
We decline Samuel’s invitation. The Rules of Appellate Procedure
require that appellants adequately develop each issue raised with discussion
of pertinent facts and pertinent authority. See Pa.R.A.P. 2119. It is not this
Court’s responsibility to comb through the record seeking the factual
underpinnings of an appellant’s claim. Commonwealth v. Mulholland,
702 A.2d 1027, 1034 n.5 (Pa. 1997). Further, this Court will not become
the counsel for an appellant and develop arguments on an appellant’s
behalf. Commonwealth v. Gould, 912 A.2d 869, 873 (Pa. Super. 2006).
It was Samuel’s responsibility to provide an adequately developed argument
by identifying the factual bases of his claim and providing citation to and
discussion of relevant authority in relation to those facts. Because he has
failed to do so, we find this issue waived.
Samuel’s second claim purports to challenge the sufficiency of the
evidence “with respect to each count of which Samuel was convicted.”
4
Samuel cites three decisions from the Federal Court of Appeals for the
Ninth Circuit, all of which involve federal wiretap procedure. See Appellant’s
Brief at 14-15. Pennsylvania has its own law governing wiretap procedure,
the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S.A. § 5701
et seq. Samuel does not provide any law regarding Pennsylvania’s wiretap
statute or explain how or to what extent Pennsylvania’s wiretap law overlaps
with federal wiretap law.
-5-
J-S53006-14
Appellant’s Brief at 22. Samuel has not specified the elements of the crimes
that he believes Commonwealth failed to adequately establish. In order to
develop a claim challenging the sufficiency of the evidence properly, an
appellant must specifically discuss the elements of the crime and identify
those which he alleges the Commonwealth failed to prove. Commonwealth
v. McDonald, 17 A.3d 1282, 1286 (Pa. Super. 2011). Samuel has failed to
do so, and so he has waived this claim for lack of development. See id.
Furthermore, we note that the only argument that Samuel presents in
support of his sufficiency claim challenges the Commonwealth’s evidence as
incredible. See Appellant’s Brief at 23-24. This argument attacks the
weight, rather than the sufficiency, of the evidence. Commonwealth v.
Feucht, 955 A.2d at 337, 382 (Pa. Super. 2008). Accordingly, such an
argument is not relevant to a sufficiency of the evidence claim. We also
note that Samuel did not raise a claim challenging the weight of the
evidence in his statement of questions involved on appeal; as such, we do
not address the merits of this argument. See Pa.R.A.P. 2116(a) (“No
question will be considered unless it is stated in the statement of questions
involved or is fairly suggested thereby.”).
Next, Samuel argues that the trial court erred by allowing the
Commonwealth to present what he calls “cumulative, prejudicial, and
irrelevant evidence of ‘historical controlled purchases’” in which Samuel had
no involvement. Appellant’s Brief at 26. However, Samuel fails to identify
-6-
J-S53006-14
the particular evidence to which he is objecting in any manner. He does not
identify what kind of evidence this was (i.e., testimonial or photographic) or
in what manner, or through what witness or witnesses, the contested
evidence was admitted. The only case law that Samuel cites in support of
this claim is the standard of review for claims challenging the admission of
evidence and the well-known principle that relevant evidence may still be
excluded if the potential for prejudice outweighs its probative value.
Appellant’s Brief at 26-27. Again, we will not comb the record for the facts
in support of Samuel’s claim and we will not develop arguments on his
behalf. This issue is waived. Mulholland, 702 A.2d at 1034 n.5; Gould,
912 A.2d at 873.
We find the next issue waived for the same reason. Samuel states
that the trial court erred by failing to exclude text messages allegedly
written by him because the Commonwealth failed to properly authenticate
them. Appellant’s Brief at 28. He states that “with regard to each text
message, the Commonwealth failed to articulate or provide independent
substantiation relative to its assertion … that the text messages played
during trial were, in fact, authored by Samuel.” Appellant’s Brief at 28
(emphasis added). However, Samuel does not identify where in the record
the admission of these text messages occurred or what the content of the
text messages was. He does not discuss any relevant authority or otherwise
-7-
J-S53006-14
develop his claim.5 This claim is woefully underdeveloped, and therefore
waived.
Samuel’s fifth claim of error is that the trial court erred by denying his
request for release on nominal bail pursuant to Pa.R.E. 600(E). Appellant’s
Brief at 19. However, because Samuel has been convicted and is
incarcerated, this claim is moot. Commonwealth v. Sloan, 907 A.2d 460,
464-65 (Pa. 2006) (holding that challenge to denial of request for release on
nominal bail is moot where defendant is no longer in pre-trial detention). As
such, we need not discuss the merits thereof.
The sixth issue Samuel raises relates to the discretionary aspects of
his sentence. An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Commonwealth v. Griffin,
65 A.3d 932, 935 (Pa. Super. 2013). Rather, an appellant challenging the
discretionary aspects of his sentence must invoke this Court's jurisdiction.
We determine whether the appellant has invoked our jurisdiction by
considering the following four factors:
(1) whether appellant has filed a timely notice of
appeal, see Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, see
Pa.R.Crim.P. 720; (3) whether appellant's brief has a
fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence
5
The entirety of Samuel’s argument on this issue is two brief paragraphs,
totaling 14 lines. See Appellant’s Brief at 27-28.
-8-
J-S53006-14
appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Id.
Samuel timely filed his notice of appeal, preserved this issue in his
post-sentence motion, and included a statement pursuant to Pa.R.A.P.
2119(f) in his appellate brief. In his Rule 2119(f) statement, Samuel
contends that the trial court erred by running his sentences consecutively,
thereby resulting in what is effectively a life sentence of incarceration. He
further contends that the trial court erred by “disregarding all mitigating
factors presented … at the time of sentencing[.]” Appellant’s Brief at 29, 31.
Essentially, Samuel claims that his sentence is excessive and that the trial
court erred by not considering mitigating factors. “[T]his Court has held that
an excessive sentence claim—in conjunction with an assertion that the court
failed to consider mitigating factors—raises a substantial question.”
Commonwealth v. Raven, __ A.3d __, 2014 WL 3907103 at *6 (Pa.
Super. August 12, 2014). Thus, we consider the merits of this claim.
As we do, we are mindful that “[s]entencing is a matter vested in the
sound discretion of the sentencing judge, and a sentence will not be
disturbed on appeal absent a manifest abuse of discretion.” Id. To be
entitled to relief, “the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law, exercised its
-9-
J-S53006-14
judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a
manifestly unreasonable decision.” Id. Our law further provides that
[t]he appellate court shall vacate the sentence and
remand the case to the sentencing court with
instructions if it finds:
(1) the sentencing court purported to sentence
within the sentencing guidelines but applied the
guidelines erroneously;
(2) the sentencing court sentenced within the
sentencing guidelines but the case involves
circumstances where the application of the guidelines
would be clearly unreasonable; or
(3) the sentencing court sentenced outside the
sentencing guidelines and the sentence is
unreasonable.
In all other cases the appellate court shall affirm the
sentence imposed by the sentencing court.
42 Pa.C.S.A. § 9781(c).
The only argument Samuel puts forth is that when imposing his
sentence, the trial court disregarded certain mitigating factors, including his
age; his lack of a history of violent crime; his cooperation and respect for
the trial court throughout the proceedings; and his two children. Appellant’s
Brief at 31. Ostensibly, Samuel’s argument is that had the trial court
considered the mitigating factors, it would not have imposed this excessive
sentence.
The record reveals that the trial court did consider Samuel’s argument
that he has no history of violent offenses, as it referenced this in its
- 10 -
J-S53006-14
comments during the sentencing hearing. N.T., 4/12/13, at 76. The trial
court does not specifically address the other mitigating factors raised by
Samuel; however, Samuel cites no authority for the proposition that a trial
court must address all mitigating circumstances presented before it, and we
know of none. To the contrary, a trial court is only required to state the
reasons for the sentence it imposes on the record, see 42 Pa.C.S.A.
§ 9781(b), and the record reveals that the trial court adequately explained
the reasons for the sentence it imposed. See N.T., 4/12/13, at 74-76.
Samuel’s argument that the trial court abused its discretion is therefore
unavailing.
Next, we address Samuel’s claim challenging the legality of his
sentence. At the time of Samuel’s trial and sentencing, 18 Pa.C.S.A. § 7508
provided for mandatory minimum sentences for drug trafficking convictions,
and the length of the mandatory minimum depended on the amount of the
drug involved.6 18 Pa.C.S.A § 7508. At the sentencing hearing, the
Commonwealth presented evidence, via the testimony of multiple law
enforcement officers, regarding the amount of cocaine Samuel possessed.
Samuel argues first that the Commonwealth failed to adequately establish
that Samuel possessed the requisite amount of cocaine such that the
mandatory minimum sentence would apply for four of the counts of which he
6
This statute was later ruled unconstitutional by this Court’s decision in
Commonwealth v. Watley, 81 A.3d 108 (Pa. Super. 2013).
- 11 -
J-S53006-14
was convicted. Appellant’s Brief at 24-25. We note that Samuel has once
again failed to support this argument (which extends for a total of only eight
and a half lines of text) with citation to the record or discussion of the
relevant facts or law. See id. Accordingly, we find this aspect of Samuel’s
claim waived.
Samuel also argues that pursuant to this Court’s decision in
Commonwealth v. Munday, 78 A.3d 661 (Pa. Super. 2013), it was for the
jury, and not the trial court, to determine whether he possessed enough
cocaine so as to implicate the mandatory minimum sentence on each count.
Appellant’s Brief at 25. As a general matter, Samuel is correct; any fact that
could increase the proscribed range of penalties to which a defendant is
exposed must be found by a jury. Munday, 78 A.3d at 664-656. The
record is clear, however, that the trial court did not sentence him in
accordance with mandatory minimum sentence provisions or any other
enhancement that required a factual predicate before application. Rather,
the record reveals that the trial court sentenced Samuel within the standard
guideline ranges, which were substantially elevated because of Samuel’s
prior record score of five. N.T., 4/12/13, at 74. Thus, although it was not
for the trial court to make the determination as to how much cocaine Samuel
possessed for purposes of determining whether mandatory minimum
sentencing provisions applied, this error had no impact on Samuel’s
sentence. Samuel’s challenge to the legality of his sentence fails.
- 12 -
J-S53006-14
Finally, we arrive at Samuel’s last claim, in which he argues that the
trial court erred by allowing the Commonwealth to amend the criminal
informations filed against him. Samuel argues that the trial court erred in
permitting the amendment, which had the effect of backdating his
involvement in the cocaine distribution ring, without a hearing, and that
doing so caused him prejudice. Appellant’s Brief at 18.
Rule of Criminal Procedure 564 governs the amendment of a criminal
information.7 The purpose of this rule is to “ensure that a defendant is fully
apprised of the charges, and to avoid prejudice by prohibiting the last
minute addition of alleged criminal acts of which the defendant is
uninformed.” Commonwealth v. Page, 965 A.2d 1212, 1223-24 (Pa.
Super. 2009). When a challenge is raised to an amended information, the
salient inquiry is
[w]hether the crimes specified in the original …
information involve the same basic elements and
evolved out of the same factual situation as the
crimes specified in the amended … information. If
so, then the defendant is deemed to have been
placed on notice regarding his alleged criminal
conduct. If, however, the amended provision alleges
a different set of events, or defenses to the amended
crime are materially different from the elements or
defenses to the crime originally charged, such that
7
“The court may allow an information to be amended when there is a defect
in form, the description of the offense(s), the description of any person or
any property, or the date charged, provided the information as amended
does not charge an additional or different offense. Upon amendment, the
court may grant such postponement of trial or other relief as is necessary in
the interests of justice.” Pa.R.Crim.P. 564.
- 13 -
J-S53006-14
the defendant would be prejudiced by the change,
then the amendment is not permitted.
Id. at 1224. In this case, the original information alleged a period of
criminal activity from October 5, 2011 to November 4, 2011, the date of
Samuel’s arrest. On February 28, 2012, as a result of information learned
from the Grand Jury investigation that commenced following Samuel’s
arrest, a second set of charges relating to the same time period was filed
against Samuel. Subsequently, based upon further information obtained
from Grand Jury investigation, the Commonwealth sought to amend the
informations filed against Samuel (and his cohorts) only for the purpose of
extending the period of their criminal activities back to January 1, 2011.
See Motion to Amend Criminal Information, 7/12/12, at 7-11. The crimes
charged in the amended informations were identical to the crimes charged in
the original informations. The charges involved the same pattern of events
upon which the charges in the original informations were based; the
amendment simply extended the period of time in which the events
occurred. As such, there was no “last minute addition of alleged criminal
acts” of which Samuel was not informed. Page, 965 A.2d at 1223-24. The
amendment did not run afoul of Rule of Criminal Procedure 564.
Samuel argues that he was prejudiced because the amendments
“back-dated” his involvement in the criminal enterprise. Appellant’s Brief at
18. Samuel misses the mark with this claim. As made clear by the
- 14 -
J-S53006-14
discussion of the relevant law above, prejudice in this context refers to
charging a defendant with crimes arising out of a set of events unrelated to
the conduct that served as the basis for the original charges. See Page,
965 A.2d at 1224. That did not occur in this case. Samuel also argues that
the trial court should have held a hearing before ruling on the
Commonwealth’s motion so that he would be “apprised of the allegations
resulting from the amendment” and “provided an effective opportunity to
object to the Commonwealth’s motion.” Appellant’s Brief at 18-19.
Samuel’s argument is disingenuous; he was served with the
Commonwealth’s motion on the date it was filed (as well as a subsequent
motion to clarify the motion to amend); therefore, he was fully apprised of
the purpose for which the Commonwealth sought amendment. Furthermore,
Samuel could have objected to the Commonwealth motion by filing a
response thereto; however, he failed to do so at any point before trial
commenced.8 Samuel is due no relief on this claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
8
The Commonwealth filed its motion to amend on July 12, 2012. Trial did
not commence until January 22, 2013.
- 15 -
J-S53006-14
Date: 9/29/2014
- 16 -