J-S68025-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES WALTER DUDLEY :
:
Appellant : No. 366 WDA 2018
Appeal from the Judgment of Sentence August 11, 2017
In the Court of Common Pleas of Cambria County Criminal Division at
No(s): CP-11-CR-0000402-2016
BEFORE: SHOGAN, J., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED DECEMBER 31, 2018
Appellant, Charles Walter Dudley, appeals from the August 11, 2017
Judgment of Sentence entered in the Cambria County Court of Common Pleas
after a jury convicted him of Possession with Intent to Deliver (“PWID”),
Possession of a Controlled Substance, and Criminal Use of a Communication
Facility.1 Upon careful review, we affirm.
The relevant factual and procedural history is as follows. On June 6,
2017, a jury found Appellant guilty of PWID and related offenses after hearing
evidence that a Confidential Informant (“C.I.”) exchanged telephone calls with
Appellant, then entered Appellant’s vehicle where the C.I. gave Appellant $250
in exchange for heroin. On August 11, 2017, the trial court sentenced
____________________________________________
135 P.S. § 780-113(a)(30); 35 P.S. § 780-113(a)(16); and 18 Pa.C.S. §
7512, respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S68025-18
Appellant to an aggregate term of 18 to 36 months’ incarceration. Appellant
did not file a post-sentence motion.
On August 15, 2017, Appellant, while still represented by counsel, filed
a pro se Notice of Appeal. On August 23, 2017, the trial court issued an Order
directing the clerk of courts to disregard the August 15, 2017 pro se Notice of
Appeal, to reject subsequent pro se filings, and to forward all pro se filings to
Appellant’s counsel.
On August 31, 2017, Appellant’s trial counsel, Jerome Kaharick, Esq.,
filed a Praecipe to Withdraw as Counsel. On September 8 and September 12,
2017, Appellant sent the trial court a pro se Petition for a Writ of Habeas
Corpus and a pro se Motion to Clarify Sentence, respectively. The clerk of
courts forwarded both correspondences to Appellant’s counsel. On September
18, 2017, Attorney Kaharick filed a Motion to Withdraw as Counsel. On
September 28, 2017, the trial court granted Attorney Kaharick’s Motion to
Withdraw as Counsel and appointed Timothy Burns, Esq. to represent
Appellant.
On October 24, 2017, Appellant filed a counseled Post Conviction Relief
Act (“PCRA”) Petition in which he alleged ineffective assistance of trial counsel
and requested that the PCRA court reinstate his appeal rights nunc pro tunc.
On February 20, 2018, without objection from the Commonwealth, the PCRA
court granted Appellant’s PCRA Petition and reinstated Appellant’s right to
appeal nunc pro tunc.
-2-
J-S68025-18
On February 26, 2018, Appellant filed a Notice of Appeal. Both Appellant
and the trial court complied with Pa.R.A.P. 1925.
Appellant raises the following issues on appeal:
1. The trial court abused its discretion in imposing a harsh and
excessive sentence in light of the evidence and testimony
presented at [] Appellant’s trial.
2. [] Appellant respectfully submits that his conviction of the
following was against the weight and sufficiency of the
evidence presented by the Commonwealth at trial: (Count 1)
Possession with Intent to Deliver [35 P.S. § 780-113(a)(30)];
(Count 2) Possession of a Controlled Substance [35 P.S. § 780-
113(a)(16)]; and (Count 3) Criminal Use of a Communication
Facility [18 Pa.C.S. § 7512].
Appellant’s Brief at 5 (some capitalization omitted).
In his first issue, raises a challenge to the discretionary aspects of his
sentence. Id. In particular, Appellant argues that the sentencing court
abused its discretion in imposing a harsh and excessive sentence. Id. This
issue is waived.
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910,
912 (Pa. Super. 2000). Prior to reaching the merits of a discretionary
sentencing issue, we must determine whether: (1) appellant has filed a timely
notice of appeal; (2) the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence; (3) appellant’s brief has a fatal
defect; and (4) there is a substantial question that the sentence is not
appropriate under the Sentencing Code. Commonwealth v. Evans, 901
-3-
J-S68025-18
A.2d 528, 533 (Pa. Super. 2006). Notably, challenges to the discretionary
aspects of a sentence are waived if they are not raised during sentencing or
in a post-sentence motion. Commonwealth v. Mann, 820 A.2d 788, 794
(Pa. Super. 2003); see also Pa.R.A.P. 302 (“Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.”)
Our review of the record reveals that Appellant’s trial counsel failed to
preserve any challenge to the discretionary aspects of Appellant’s sentence
during sentencing or in a post-sentence motion. Accordingly, we are
constrained to find that this issue is waived.2
In his second issue, Appellant challenges both the weight and sufficiency
of the evidence presented during trial. Appellant’s Brief at 5.
Before we reach the merits of Appellant’s weight claim, we must
determine whether Appellant has preserved it for appellate review. A weight
of the evidence claim must be raised before the trial court pursuant to
____________________________________________
2 Our Supreme Court has held that where a PCRA court reinstates direct appeal
rights nunc pro tunc, a petitioner is not also automatically entitled to
reinstatement of his post-sentence rights nunc pro tunc. Commonwealth v.
Liston, 977 A.2d 1089, 1090 (Pa. 2009). Rather, a petitioner must
successfully plead and prove in a PCRA Petition that he was deprived of the
right to file and litigate post-sentence motions as a result of ineffective
assistance of counsel in order for a PCRA Court to reinstate his post-sentence
rights nunc pro tunc. Id. at 1094 n.9; see also Commonwealth v. Fransen,
986 A.2d 154, 155 (Pa. Super. 2009) (holding PCRA petitioner who obtains
resinstatement of direct appeal rights is not entitled to reinstatement of post-
sentence rights nunc pro tunc if he did not request that relief with the PCRA
court). Instantly, Appellant did not request reinstatement of his post-
sentence rights nunc pro tunc in his PCRA Petition, and the PCRA court did not
grant such relief.
-4-
J-S68025-18
Pa.R.Crim.P. 607(A). See also Pa.R.A.P. 302 (“Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.”). A
defendant must preserve a weight claim “either in a post-sentence motion, by
a written motion before sentencing, or orally prior to sentencing.”
Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa. Super. 2014) (citation
and quotation omitted); see also Pa.R.Crim.P. 607(A). “Failure to properly
preserve a weight claim will result in waiver of the claim, even if the trial court
addresses the issue in its opinion.” Thompson, supra at 490 (citation and
quotation omitted). This Court’s review of a challenge to the weight of the
evidence is limited to whether the trial court palpably abused its discretion in
ruling on the weight claim. Commonwealth v. Champney, 832 A.3d 403,
408 (Pa. 2003). A trial court cannot “rule” on a weight claim in its 1925(a)
Opinion, because by that time the trial court is “divested of jurisdiction to take
further action in the case.” Thompson, supra at 490-91; see also Pa.R.A.P.
1701(a) (stating that after an appeal is taken the trial court may no longer
proceed further in the matter).
Instantly, our review of the record reveals that Appellant’s trial counsel
failed to preserve a challenge to the weight of the evidence in either a pre-
sentence or post-sentence motion. Accordingly, despite the trial court
addressing the weight issue in its 1925(a) Opinion, we are constrained to find
this issue waived.
Finally, Appellant avers that the evidence presented at trial was
insufficient to sustain his convictions. Appellant’s Brief at 5. Specifically,
-5-
J-S68025-18
Appellant argues that the testimony of the C.I., the only eyewitness to the
transaction, was not credible. Id. at 18. Therefore, Appellant argues, the
Commonwealth did not sufficiently prove that Appellant took part in a drug
transaction warranting convictions for PWID and related offenses. Id. at 18-
19. We, likewise, find this issue to be waived.
Pennsylvania Rule of Appellate Procedure 1925(b) provides, inter alia,
that, in a statement of matters complained of on appeal, an appellant “shall
concisely identify each ruling or error that the appellant intends to challenge
with sufficient detail to identify all pertinent issues for the judge[,]” and issues
that are not properly raised are deemed waived. Pa.R.A.P. 1925(b)(4). This
Court has repeatedly stated, “[i]n order to preserve a challenge to the
sufficiency of the evidence on appeal, an appellant's Rule 1925(b) statement
must state with specificity the element or elements upon which the appellant
alleges that the evidence was insufficient.” Commonwealth v. Garland, 63
A.3d 339, 344 (Pa. Super. 2013) (citation omitted). Such specificity is of
particular importance in cases where an appellant is convicted of multiple
crimes and each crime contains numerous elements that the Commonwealth
must prove beyond a reasonable doubt. Id.
A jury convicted Appellant of three separate crimes, each of which
contained numerous elements. In his Rule 1925(b) Statement, Appellant
presented his challenge to the sufficiency of the evidence as follows:
The Appellant’s conviction for one count each of Possession with
Intent to Deliver a Controlled Substance, Possession of a
-6-
J-S68025-18
Controlled Substance, and Criminal Use of a Communication
Facility was against the weight and sufficiency of the evidence
presented by the Commonwealth at trial.
Appellant’s Rule 1925(b) Statement, filed 2/26/18, at ¶1. Appellant failed to
specify which elements of which crimes he is challenging for lack of sufficient
evidence. While the trial court did address the topic of sufficiency in its
opinion, this Court has held that this is “of no moment to our analysis because
we apply Pa.R.A.P. 1925(b) in a predictable, uniform fashion, not in a selective
manner dependent on an appellee's argument or a trial court's choice to
address an unpreserved claim.” Commonwealth v. Williams, 959 A.2d
1252, 1257 (Pa. Super. 2008) (citation omitted). Accordingly, we conclude
that Appellant has waived this issue.3
In sum, we conclude that Appellant failed to preserve his challenges to
the weight and sufficiency of the evidence as well as the discretionary aspects
of his sentence. Accordingly, we affirm his Judgment of Sentence.
Judgment of Sentence affirmed.
____________________________________________
3 Moreover, Appellant’s argument that the evidence was insufficient because
the testimony from the C.I was not credible is a challenge to the weight of the
evidence, a challenge that he failed to preserve in a pre-sentence or post-
sentence motion pursuant to Pa.R.Crim.P. 607(A).
-7-
J-S68025-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/31/2018
-8-