J-S57008-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JEFFERY T. MORALES, :
:
Appellant : No. 2823 EDA 2013
Appeal from the Judgment of Sentence August 12, 2013,
Court of Common Pleas, Philadelphia County,
Criminal Division at No. CP-51-CR-0010305-2012
BEFORE: DONOHUE, MUNDY and STABILE, JJ.
MEMORANDUM BY DONOHUE, J.: FILED OCTOBER 10, 2014
Jeffrey T. Morales (“Morales”) appeals from the judgment of sentence
entered on August 12, 2013 by the Court of Common Pleas of Philadelphia
County, Criminal Division, following his convictions for the manufacture,
delivery, or possession with intent to manufacture or deliver, a controlled
substance,1 possessing a controlled or counterfeit substance,2 and the use
of, or possession with intent to use, drug paraphernalia.3 We affirm.
The trial court summarized the facts in this case as follows:
On July 24, 2012, between 2:00 p.m. and 6:00 p.m.,
Philadelphia Police Officer Thomas Rola met with a
confidential informant (‘CI’), gave him $70
prerecorded buy money[,] and directed him to go to
1
35 P.S. § 780-113(a)(30).
2
35 P.S. § 780-113(a)(16).
3
35 P.S. § 780-113(a)(32).
J-S57008-14
the 3000 block of Arbor Street in Philadelphia. Officer
Rola observed the CI engage [Morales] in a
conversation just outside of an open garage at 3033
Arbor Street. [Morales] pointed to the open garage,
where he and the CI began to walk. While walking to
the garage, the CI handed [Morales] the $70 of
prerecorded buy money. The CI entered 3033 Arbor
Street while [Morales] entered 3035 Arbor Street.
[Morales] then exited 3035 Arbor Street and entered
3033 Arbor Street. A very short time later, both the
CI and [Morales exited] 3033 Arbor Street.
Thereafter, the CI returned to Officer Rola and
handed him seven packets of heroin stamped
‘Boogeyman’ that he had received from [Morales].
On August 8, 2012, at approximately 2:30 p.m.[,]
Officer Rola and Officer Parrotti returned to the 3000
block of Arbor Street in Philadelphia. Officer Rola set
up a surveillance at the same location as the
surveillance on July 24, 2012. At that time, Officer
Parrotti approached the 3000 block of Arbor Street
and was met at 3033 Arbor Street by a Hispanic
male, wearing a white [t]-[s]hirt, in front of 3033
Arbor Street. A similar series of events occurred[]
where heroin with the same stamp was sold,
however[,] the male that the CI interacted with that
day was not [Morales], as he was in Puerto Rico on
that date.
On August 10, 2012, at approximately 9:35 a.m.
Officer Rola executed search and seizure warrants
for 3033, 3035[,] and 3036 Arbor Street. At
approximately 9:40 a.m.[,] Officer Rola secured the
property at 3035 Arbor Street. Immediately
thereafter, Officer Rola went to the residence across
from the garage on 3035 Arbor Street and entered
the property at 3036 Arbor Street. At that time,
Officer Rola entered the property, went up the steps
and observed [Morales] standing in the rear
bedroom, throwing a brown Timberland boot out of
the rear window into a yard that was occupied by a
pit bull. The boot was recovered and inside was
$6,035. Officer Rola arrested [Morales] and
-2-
J-S57008-14
recovered from the rear bedroom three packets of
heroin stamped ‘Boogeyman’ bundled with a black
rubber band which matched the buys from July 24,
2012 and August 8, 2012, $4,984, and one clear
baggie with red apple logos which contained
numerous new and unused clear packets.
Trial Court Opinion, 1/16/14, at 2-3 (record citations omitted).
On May 13, 2013, following trial, the trial court found Morales guilty of
the above-referenced crimes. On July 19, 2013, prior to sentencing, Morales
filed a document titled motion for relief pursuant to [Pa.R.Crim.P.] 720 in
which he sought a new trial based on newly discovered evidence. Motion for
Relief Pursuant to [Pa.R.Crim.P.] 720, 7/19/13, at 2-3. On August 12, 2013,
the trial court denied that motion during the sentencing hearing and then
sentenced Morales to 15 to 30 months of incarceration followed by two years
of probation. On August 21, 2013, Morales filed a motion for reconsideration
of sentence. On September 16, 2013, the trial court denied his motion for
reconsideration of sentence. On October 4, 2013, Morales filed a timely
notice of appeal. On October 28, 2013, the trial court ordered Morales to file
a concise statement of errors complained of on appeal pursuant to Rule
1925(b) of the Pennsylvania Rules of Appellate Procedure. On November 6,
2013, Morales timely filed his Rule 1925(b) statement.
On appeal, Morales raises the following three issues for our review:
[1.] DID THE TRIAL COURT COMMIT AN ABUSE OF
DISCRETION BY DENYING [MORALES]’S POST-
SENTENCE MOTION ALLEGING THAT THE VERDICTS
WERE AGAINST THE WEIGHT OF THE EVIDENCE
-3-
J-S57008-14
BECAUSE THE TESTIMONY WAS REPLETE WITH
INCONSISTENCIES AND CONTRADICTIONS SUCH
THAT THE VERDICTS [SHOCK] THE CONSCIENCE?
[2.] DID THE TRIAL COURT COMMIT AN ABUSE OF
DISCRETION BY FAILING TO CONSIDER
[MORALES]’S REHABILITATIVE NEEDS AND FAMILY
CIRCUMSTANCES AND RESPONSIBILITIES?
[3.] DID THE TRIAL COURT COMMIT AN ABUSE OF
DISCRETION BY DENYING [MORALES]’S PRE-
SENTENCE MOTION SEEKING A NEW TRIAL BASED
ON AFTER-DISCOVERED EVIDENCE.
Morales’s Brief at 3.
For his first issue on appeal, Morales argues that the jury’s verdict was
against the weight of the evidence. Morales’s Brief at 11-14. Our standard
of review when presented with a weight of the evidence claim is different
from that applied by the trial court:
Appellate 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. Because the trial judge has had the
opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination
that the verdict is against the weight of the
evidence. One of the least assailable reasons for
granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against
the weight of the evidence.
Commonwealth v. Antidormi, 84 A.3d 736, 758 (Pa. Super. 2014).
Therefore, “an appellate court reviews the exercise of the trial court’s
discretion; it does not answer for itself whether the verdict was against the
-4-
J-S57008-14
weight of the evidence.” Commonwealth v. Houser, 18 A.3d 1128, 1135-
36 (Pa. 2011). Importantly, “a new trial based on a weight of the evidence
claim is only warranted where the jury’s verdict is so contrary to the
evidence that it shocks one’s sense of justice.” Id.
We conclude that Morales has waived his weight of the evidence claim.
Pennsylvania Rule of Criminal Procedure 607(a) states:
(A) 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.
Pa.R.Crim.P. 607(a). Our Court has repeatedly held that the “[f]ailure to
challenge the weight of the evidence presented at trial in an oral or written
motion prior to sentencing or in a post-sentence motion will result in waiver
of the claim.” Commonwealth v. Bryant, 57 A.3d 191, 196 (Pa. Super.
2012) (citing Commonwealth v. Bond, 985 A.2d 810, 820 (Pa. 2009)).
Furthermore, our Supreme Court has explained,
Appellant’s failure to challenge the weight of the
evidence before the trial court deprived that court of
an opportunity to exercise discretion on the question
of whether to grant a new trial. Because ‘appellate
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
-5-
J-S57008-14
evidence,’ Commonwealth v. Widmer, [] 744 A.2d
745, 753 ([Pa.] 2000), this Court has nothing to
review on appeal.
Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009).
Additionally, “[f]ailure to properly preserve the [weight] claim will
result in waiver, even if the trial court addresses the issue in its opinion.
Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012), appeal
denied, 69 A.3d 601 (Pa. 2013). Our Court explained:
Appellant is mistaken in his belief that the trial
court’s addressing of the merits of his weight claim
in its Rule 1925(a) opinion permits us to review the
claim. ‘[A]ppellate review [of a weight claim] is
limited to whether the trial court palpably abused its
discretion....” Commonwealth v. Champney, []
832 A.2d 403, 408 ([Pa.] 2003). Here, the trial court
never ‘ruled’ on the issue and, therefore, it could not
grant nor deny the claim at the time it was first
raised by Appellant in his concise statement.
Although the court addressed the issue’s merits in its
Rule 1925(a) opinion, the trial court was, by that
time, divested of jurisdiction to take further action in
the case. See Pa.R.A.P. 1701(a) (‘Except as
otherwise prescribed by these rules, after an appeal
is taken or review of a quasijudicial order is sought,
the trial court or other government unit may no
longer proceed further in the matter.’). Thus, the
trial court was never given the opportunity to
provide Appellant with relief and, consequently,
there is no discretionary act that this Court could
review. Appellant’s weight of the evidence claim is
waived.
Commonwealth v. Thompson, 93 A.3d 478, 490-91 (Pa. Super. 2014).
Therefore, because the certified record reflects that Morales failed to raise
his weight of the evidence claim prior to sentencing or in a post-sentence
-6-
J-S57008-14
motion, we find that he has waived his weight of the evidence claim on
appeal, even though the trial court addressed the merits of his claim.
For his second issue on appeal, Morales raises a discretionary aspects
of sentence claim. Morales’s Brief at 15-20. “A challenge to the
discretionary aspects of a sentence must be considered a petition for
permission to appeal, as the right to pursue such a claim is not absolute.”
Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004), appeal
denied, 860 A.2d 122 (Pa. 2004). “Two requirements must be met before
we will review this challenge on its merits.” Id. “First, an appellant must
set forth in his brief a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of a sentence.”
Id. “Second, the appellant must show that there is a substantial question
that the sentence imposed is not appropriate under the Sentencing Code.”
Id. A substantial question exists when, “the sentence violates either a
specific provision of the sentencing scheme set forth in the Sentencing Code
or a particular fundamental norm underlying the sentencing process.”
Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005).
In the present case, Morales’s appellate brief contains the requisite
2119(f) concise statement. See Morales’s Brief at 15-16. Morales argues
that the sentencing court did not take into consideration his rehabilitative
needs and family obligations when sentencing him. Id. at 16-20. A claim
that a sentencing court failed to consider the rehabilitative needs of the
-7-
J-S57008-14
defendant does not present a substantial question for our review. See
Commonwealth v. Griffin, 65 A.3d 932, 936-37 (Pa. Super. 2013)
(holding that the appellant’s allegation that the sentencing court failed to
take into account his rehabilitative needs entitled him to no relief), appeal
denied, 76 A.3d 538 (Pa. 2013). Likewise, a claim that a sentencing court
did not consider a defendant’s family obligations does not raise a substantial
question. See Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super.
2010) (“An allegation that the sentencing court failed to consider certain
mitigating factors generally does not necessarily raise a substantial
question.”). Because Morales has not raised a substantial question, his
discretionary aspects of sentence claim must fail.
Even if we were to determine that Morales’s claim did raise a
substantial question, we find no merit to the underlying allegation. Morales
contends that the trial court abused its discretion in sentencing him because
it failed to consider his rehabilitative needs and his family obligations in
accordance with section 9721(b) of the Sentencing Code. Morales’s Brief at
16-20. Here, however, the record reflects that the trial court considered
each of the factors of section 9721(b), including his rehabilitative needs and
family obligations. See Trial Court Opinion, 1/16/14, at 7. Therefore,
because the trial court took into consideration each of the factors in section
9721(b), Morales’s argument that the sentencing court did not contemplate
his rehabilitative needs and family obligations fails. Moreover, we note that
-8-
J-S57008-14
the trial court sentenced Morales in the mitigated range of the sentencing
guidelines, providing further support for the trial court’s representation that
it included both his rehabilitative needs and other mitigating factors in its
sentencing decision. Accordingly, we conclude that the trial court did not
abuse its discretion in sentencing Morales.
For his third issue on appeal, Morales claims that the trial court erred
by denying his pre-sentence motion for a new trial based on newly
discovered evidence showing that he had rented a hotel room in Wildwood,
New Jersey from July 22 to July 28, 2012. Morales’s Brief at 20. Morales
argues that his hotel receipt proves that he was not involved in a drug
transaction on July 24, 2012. Id. at 20-23.
We conclude that Morales has failed to preserve his newly discovered
evidence issue for review because he did not file any post-trial motions.
Rule 704(B) of the Pennsylvania Rules of Criminal Procedure provides:
(B) Oral Motion for Extraordinary Relief.
(1) Under extraordinary circumstances, when the
interests of justice require, the trial judge may,
before sentencing, hear an oral motion in arrest of
judgment, for a judgment of acquittal, or for a new
trial.
(2) The judge shall decide a motion for extraordinary
relief before imposing sentence, and shall not delay
the sentencing proceeding in order to decide it.
(3) A motion for extraordinary relief shall have no
effect on the preservation or waiver of issues for
post-sentence consideration or appeal.
-9-
J-S57008-14
Pa.R.Crim.P. 704(B). “The plain terms of Rule 704(B) does not permit the
filing of a written motion for extraordinary relief prior to sentencing.”
Commonwealth v. Howe, 842 A.2d 436, 441 (Pa. Super. 2004) (emphasis
in original).
Moreover, this Court has held that “Rule 704 … specifically declares
that any motion for extraordinary relief must be preserved via a post-trial
motion.” Commonwealth v. Askew, 907 A.2d 624, 627 (Pa. Super.
2006). In applying Rule 704(B), our Court has explained:
The comment to the rule clarifies that a motion for
extraordinary relief is neither necessary nor sufficient
to preserve an issue for appeal. This Court has
consistently held that we will not allow such motions
as a ‘substitute vehicle’ for raising a matter that
should be raised in a post-sentence motion.
Id. (internal citations, quotations, and footnotes omitted); see also
Commonwealth v. Grohowski, 980 A.2d 113, 115-16 (Pa. Super. 2009);
Commonwealth v. Woods, 909 A.2d 372, 378-79 (Pa. Super. 2006).
Here, prior to sentencing, Morales filed a document that he titled
motion for relief pursuant to [Pa.R.Crim.P.] 720 in which a sought a new trial
based on newly discovered evidence. The caption of the motion does
reference Rule 720, however, Rule 720 governs post-sentence motions.
See Pa.R.Crim.P. 720. Here, Morales filed this motion prior to sentencing
and the trial court heard argument on the motion before denying it during
the sentencing hearing, prior to sentencing Morales. N.T., 8/12/13, at 3-8.
- 10 -
J-S57008-14
Notably, the docket refers to this motion as a motion for extraordinary relief.
Accordingly, we find that Morales filed a motion for extraordinary relief
pursuant to Rule 704(B). See Pa.R.Crim.P. 704(B); see also
Commonwealth v. Wesley, 688 A.2d 201, 204 (Pa. Super. 1997)
(recognizing that specific terms of a petition control over the use of
erroneous terminology in the caption).
Rule 704 makes clear that Morales’s pre-sentence motion alone was
neither necessary nor sufficient to preserve his newly discovered evidence
issue for appeal to this Court. See Askew, 907 A.2d at 627; Howe, 842
A.2d at 441; Pa.R.Crim.P. 704(B)(3), comment. Had Morales raised his
newly discovered evidence issue in a timely post-sentence motion, he would
have preserved the issue for appeal. See Askew, 907 A.2d at 627.
Morales did not file any post-sentence motions in this case besides his
motion for reconsideration of sentence, in which he did not raise any issue
relating to newly discovered evidence. See Motion for Reconsideration of
Sentence, 8/21/13, at 1-2. Because Morales only raised his newly
discovered evidence issue in a motion for extraordinary relief and not in a
post-sentence motion, we are compelled to find that Morales has not
preserved this issue for appeal. See Askew, 907 A.2d at 627.
Judgment of sentence affirmed.
- 11 -
J-S57008-14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/2014
- 12 -