J-S29043-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TORRENCE DEONTA LYDE, :
:
Appellant : No. 2011 WDA 2014
Appeal from the Judgment of Sentence Entered May 28, 2014,
in the Court of Common Pleas of Indiana County,
Criminal Division, at No(s): CP-32-CR-0001206-2013
BEFORE: PANELLA, MUNDY, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 11, 2015
Torrence Deonta Lyde (Appellant) appeals from a judgment of
sentence that was entered after a jury convicted him of a number of crimes,
including possession with the intent to deliver a controlled substance
(heroin) and resisting arrest. We affirm.
The trial court summarized the background underlying this matter as
follows.
… On August 21, 2013, Pennsylvania State Police had a
confidential informant purchase heroin at an apartment where
[Appellant] was present. After the transaction took place, police
obtained a warrant and located [Appellant] in the apartment,
within close proximity to a large quantity of heroin. Police
recorded serial numbers on the currency given to the informant
for the purchase and all three of these bills were recovered
during the search. When police arrived, [Appellant] was in the
bathroom at the back of the apartment where the sound of a
flushing toilet could be heard. [Appellant] blocked the bathroom
door in an attempt to stop police from entering and continued to
resist arrest until he was eventually tasered and subdued.
*Retired Senior Judge assigned to the Superior Court.
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[A jury convicted Appellant, and the court sentenced him
on May 28, 2014]. For the offense of possession with the intent
to deliver 1.8 grams of heroin, a second or subsequent offense,
[Appellant] was sentenced to a state correctional institution for a
period of not less than three nor more than twelve years. For
the offense of conspiracy to possess[] with the intent to deliver
1.8 grams of heroin, a second or subsequent offense, [Appellant]
also received a sentence of incarceration for a period of not less
than three years nor more than twelve years. The possession
with intent to deliver and conspiracy to possess[] with intent to
deliver sentences are to run concurrently. No sentence was
imposed for possession of a controlled substance, as it merged
with the offense of possession with intent to deliver. For the
offense of recklessly endangering another person, [Appellant]
was sentenced to incarceration of not less than one nor more
than two years [in prison], with this sentence to run
consecutively to the controlled substance offenses. [Appellant]
was also sentenced to incarceration of not less than six months
nor more than one year for the offense of resisting arrest, with
this sentence to run consecutively to the aforementioned
sentences.
Trial Court Opinion, 8/29/2014, at 1-2 (unnecessary capitalization omitted).
On June 30, 2014, Appellant filed a notice of appeal. The trial court
directed Appellant to comply with Pa.R.A.P. 1925(b). Appellant filed a
1925(b) statement, and the trial court issued an opinion in compliance with
Pa.R.A.P. 1925(a). However, on October 29, 2014, this Court issued a per
curiam order quashing the appeal as untimely filed. Commonwealth v.
Lyde, 1107 WDA 2014.
Appellant then timely requested and was granted the reinstatement of
his direct appeal rights. Appellant timely filed a notice of appeal and sua
sponte filed a 1925(b) statement. The trial court responded to the 1925(b)
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statement by relying on its previously issued 1925(a) opinion. In his brief to
this Court, Appellant asks us to consider the following questions:
I. Whether the trial court erred by denying [] Appellant’s Motion
to Demurrer, when the defense challenged the weight of the
evidence following the Commonwealth’s case.
II. Whether the trial court erred by denying the defense
objection, and allowing the prosecution to have police witnesses
testify that a controlled buy of illegal drugs was made by a
confidential informant, from an apartment where [] Appellant
and others were present, without revealing the name of the
confidential informant.
Appellant’s Brief at V.
The manner in which Appellant’s counsel phrases the first issue and
presents the argument in support thereof is confusing. We begin our
discussion of that issue by observing that, after the Commonwealth rested,
the trial court asked Appellant’s counsel whether he wanted to make a
motion for judgment of acquittal. N.T., 5/19/14, at 141. Counsel responded
as follows: “I would, your Honor. I move for a demurrer on all the charges
except resisting. I don’t think there is enough evidence presented on that to
establish.” Id. at 141-42. Soon thereafter, the court denied counsel’s
motion, referring to it as a motion for judgment of acquittal. Id. at 142.
On appeal, Appellant argues that the trial court erred by denying the
oral motion he made at the close of the Commonwealth’s case. See, e.g.,
Appellant’s Brief at 1 (“The Trial Court erred by denying the Appellant’s
Motion to Demurrer ….”). However, it is unclear whether Appellant
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ultimately is presenting a challenge to the weight of the evidence or to the
sufficiency of the evidence, as he provides the legal principles for challenging
both.
To the extent that Appellant’s first issue raises a claim that he is
entitled to a new trial because the jury’s verdict is contrary to the weight of
the evidence, we conclude that the issue is waived. In order to preserve a
weight-of-the-evidence claim for appellate review, Appellant was required to
present such a claim to the trial court in a motion for a new trial orally
before sentencing, by written motion before sentencing, or in a post-
sentence motion. Pa.R.Crim.P. 607(A). Appellant did not file a post-
sentence motion or a written motion before sentencing. While he did make
an oral pre-sentence motion for a “demurrer,” Appellant did not request a
new trial in making that motion and, perhaps more importantly, made the
motion prior to the verdict. Thus, when he made that motion, any claim
that the verdict was contrary to the weight of the evidence was premature.
To the extent that Appellant’s first issue raises a claim that the
Commonwealth failed to present sufficient evidence to support his
convictions, we first highlight that Appellant was convicted of five crimes.
Appellant fails to indicate what crime he believes the Commonwealth failed
to prove he committed at trial, let alone which element of the crime he
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believes the Commonwealth failed to establish;1 consequently, Appellant has
waived any challenge to the sufficiency of the evidence. See
Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa. Super. 2014) (“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. Samuel has
failed to do so, and so he has waived this claim for lack of development.”)
(citations omitted).
Appellant next asserts that “[o]ver objection from the defense, the
[t]rial [c]ourt refused to direct the Commonwealth to reveal the name of the
confidential informant[.]” Appellant’s Brief at 4. Appellant argues that the
trial court erred in this regard.
Appellant raised this issue in his 1925(b) statement. In response, the
trial court stated that “[a] review of the record shows that [Appellant] made
no objection to this issue[.]” Trial Court Opinion, 8/29/2014, at 2. The
Commonwealth also suggests that the record does not support Appellant’s
claim that he raised this issue at trial. Commonwealth’s Brief at 10.
1
The only specific challenge Appellant makes regarding the evidence
presented at trial is as follows: “At trial there was not testimony that []
Appellant was involved with a delivery of heroin, either by himself or with
other people.” Appellant’s Brief at 1 (emphasis added); see id. (“[T]he
burden of proving delivery was clearly not met by the Commonwealth.”).
However, Appellant was not convicted of delivering heroin by himself or with
other people; rather, he was convicted of, inter alia, possession with the
intent to deliver heroin and conspiracy to possess with the intent to
deliver heroin.
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Appellant’s brief fails to indicate where in the record he preserved this issue,
in violation of Pa.R.A.P. 2117(c) and 2119(e). Moreover, while reviewing the
certified record, we did not observe any issue raised by Appellant regarding
the identity of the confidential informant. For these reasons, we conclude
that Appellant waived his second issue. See Pa.R.A.P. 302(a) (“Issues not
raised in the lower court are waived and cannot be raised for the first time
on appeal.”).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/11/2015
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