Com. v. Buxton, A.

J-S62002-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDY BUXTON :
:
Appellant : No. 336 WDA 2018

Appeal from the Judgment of Sentence July 14, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0012834-2013

BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.: FILED MARCH 13, 2020

Andy Buxton appeals, nunc pro tunc, from the judgment of sentence

entered on July 14, 2016, following his conviction of one count of criminal use

of a communications facility,1 one count of corrupt organizations,2 three

counts of possession with intent to deliver heroin (“PWID”),3 three counts of

delivery of heroin,4 and three counts of possession of heroin.5 On appeal,

____________________________________________

1 18 Pa.C.S.A. § 7512(a).

2 18 Pa.C.S.A. § 911(b)(3).

3 35 P.S. § 780-113(a)(30).

4 35 P.S. § 780-113(a)(30).

5 35 P.S. § 780-113(a)(16).
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Appellant raises twelve issues,6 claiming the trial court erred: (1) when it

refused to grant a short recess during trial to allow counsel to prepare an alibi

defense; (2) failed to suppress recorded telephone conversation between a

confidential informant and a narcotics seller; (3) allowed the Commonwealth

to commit prosecutorial misconduct; (4) in denying Appellant’s motion to

suppress the photographic identification of him; (5) in admitting evidence

from a cell phone seized without a warrant; (6) in denying a motion for

judgment of acquittal on the charge of corrupt organizations; (7) in admitting

hearsay evidence; (8) in calculating Appellant’s prior record score; (9) in

denying Appellant’s motion to quash; (10) in denying Appellant’s Rule 600

motion; (11) in admitting stipulations without Appellant’s consent; and (12)

in not holding the conviction on corrupt organizations violated the

Pennsylvania Supreme Court’s decision in Commonwealth v. Besch, 674

A.2d 655 (Pa. 1996). Appellant’s Brief, at 5-6; Appellant’s Amended Brief, at

3-5. After review, we affirm.

Given the manner in which we dispose of this appeal, we will provide

only a brief summary of the background underlying the matter. Between June

2012 and January 2013, agents from the Pennsylvania Attorney General’s

____________________________________________

6In his initial brief, Appellant raised eight issues. On June 26, 2019, Appellant
sought leave to file an amended brief. On June 28, 2019, this Court granted
his request. Appellant filed his amended brief raising four additional issues on
July 3, 2019.

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Office conducted an investigation into the drug trade in Allegheny County.

During that period, two confidential informants engaged in five controlled

heroin buys and six cash deliveries with Appellant and his brother, co-

defendant Carl Buxton.7 During the transactions, law enforcement utilized

ground level surveillance, aerial video surveillance, and electronic surveillance

and recording of telephone conversations.

On January 25, 2013, the agents searched two residences associated

with Appellant and his brother. In the first residence, they found multiple cell

phones, a digital scale, several thousand dollars in cash, including $800.00 of

pre-recorded buy money, and documents bearing the names of both brothers.

In the second building, the brothers’ primary residence, they found more cell

phones, five bricks of heroin, and more documents bearing the names of the

brothers.

Despite the agents being unable to locate any legitimate means of

employment, Appellant deposited $101,550.00 in a bank account in 2012.

The agents were able to ascertain that $6,582.50 came from rental income

and another $3,677.93 from the operation of a cleaning franchise.

On October 13, 2013, the Commonwealth filed a criminal information

charging Appellant with multiple charges relating to the drug trade. Appellant

filed numerous pre-trial motions, including three omnibus pretrial motions.

____________________________________________

7 The jury acquitted Carl Buxton of all charges.

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Following a hearing, the trial court denied Appellant’s motions to suppress on

December 23, 2014. On September 28, 2015, Appellant filed a Rule 600

motion. Appellant subsequently filed several more pre-trial motions. The trial

court denied the motions on November 23, 2015.

On April, 24, 2016, a jury found Appellant guilty of the aforementioned

charges.8 On July 14, 2016, the trial court sentenced Appellant to an

aggregate term of 7 to 14 years’ imprisonment. Appellant filed a timely post-

sentence motion on July 22, 2016.

On July 27, 2016, Appellant filed a motion for appointment of new

counsel, which the trial court granted on August 1, 2016. On August 24, 2017,

new counsel filed a petition seeking reinstatement of Appellant’s post-

sentence motion rights pursuant to the Pennsylvania Post Conviction Relief

Act (PCRA).9 The court granted the PCRA petition on August 30, 2017. After

seeking and receiving an extension of time, Appellant filed a motion for arrest

of judgment and/or a new trial on February 23, 2018. The trial court denied

the motion on February 27, 2018. The instant, timely appeal followed.

____________________________________________

8The jury was unable to reach a verdict on one count of conspiracy to PWID,
one count of PWID, one count of delivery of heroin, and one count of
possession of heroin. The jury acquitted Appellant of conspiracy to commit
corrupt organizations, two counts of PWID, one count of delivery of heroin,
and one count of possession of heroin.

9 42 Pa.C.S.A. §§ 9541–9546.

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On March 7, 2018, the trial court directed Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Nineteen days later, Appellant filed a 26-page Rule 1925(b) statement. The

next day, without seeking leave of court, Appellant filed an approximately 70-

page “Appendix to Concise Statement.”

Approximately one month later, Appellant filed a motion seeking leave

to amend his Rule 1925(b) statement, which the trial court granted on June

11, 2018. On July 3, 2018, Appellant filed a 4-page “Addendum to Concise

Statement of Errors Complained of on Appeal.” On March 11, 2019, the trial

court issued an opinion.

Initially, we mention the following concerns. While this Court

understands the duty to be a zealous advocate,

. . . we note that it has been held that when an appellant raises
an extraordinary number of issues on appeal, as in this case, a
presumption arises that there is no merit to them. In United
States v. Hart, 693 F.2d 286, 287 n.1 (3rd Cir. 1982), the court
had an opportunity to address this situation:

Because of the inordinate number of meritless
objections pressed on appeal, spotting the one bona
fide issue was like finding a needle in a haystack. One
of our colleagues has recently cautioned on the
danger of “loquaciousness:”

With a decade and a half of federal
appellate court experience behind me, I
can say that even when we reverse a trial
court it is rare that a brief successfully
demonstrates that the trial court
committed more than one or two
reversible errors. I have said in open
court that when I read an appellant’s brief

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that contains ten or twelve points, a
presumption arises that there is no merit
to any of them. I do not say that this is
an irrebuttable presumption, but it is a
presumption nevertheless that reduces
the effectiveness of appellate advocacy.
Appellate advocacy is measured by
effectiveness, not loquaciousness.

Aldisert, The Appellate Bar: Professional Competence
and Professional Responsibility—A View From the
Jaundiced Eye of One Appellate Judge, 11
Cap.U.L.Rev. 445, 458 (1982).

Estate of Lakatosh, 656 A.2d 1378, 1380 n.1 (Pa. Super. 1995).

Further, prior to analyzing the issues in Appellant’s brief, this Court must

determine whether Appellant properly preserved any issues for our review.

See Commonwealth v. Wholaver, 903 A.2d 1178, 1184 (Pa. 2006) (holding

appellate courts may sua sponte determine whether issues have been properly

preserved on appeal).

Rule 1925(b)(4) provides, in pertinent part:

(ii) The Statement shall concisely identify each ruling or error that
the appellant intends to challenge with sufficient detail to identify
all pertinent issues for the judge. The judge shall not require the
citation to authorities; however, appellant may choose to include
pertinent authorities in the Statement.

****

(iv) The Statement should not be redundant or provide lengthy
explanations as to any error. Where non-redundant, non-
frivolous issues are set forth in an appropriately concise manner,
the number of errors raised will not alone be grounds for finding
waiver.

Pa.R.A.P. 1925(b)(4)(ii), (iv) (emphasis added).

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Here, after Appellant filed a Rule 1925(b) statement that was 26 pages

in length, he then filed a close to seventy-page appendix, and a four-page

amended statement. In its decision, the trial court discussed at length the

difficulty it had in ascertaining Appellant’s claims, particularly because he also

raised a large number of claims of ineffective assistance of counsel. See Trial

Court Opinion, 3/11/19, at 11-12.

Given this, we would be well within our rights to find Appellant has

waived all issues on appeal. See Jiricko v. Geico Ins. Co., 947 A.2d 206,

210 (Pa. Super. 2008) (finding waiver appropriate remedy where appellant

filed five-page incoherent statement of errors); see also Kanter v. Epstein,

866 A.2d 394, 401 (Pa. Super. 2004). However, the trial court admirably

attempted to address Appellant’s claims. See Trial Ct. Op., at 11-28. Because

of this, despite our grave reservations, we decline to find waiver on this basis

and will address the issues in Appellant’s appeal to the extent possible given

the rambling and discursive nature of the briefs filed by Appellant.

Lastly, throughout his briefs, Appellant contends he received ineffective

assistance of all prior counsel10 and the trial court erred in finding that he

could only raise such claims in a PCRA petition. These ineffectiveness claims,

however, are premature. In Commonwealth v. Holmes, 79 A.3d 562 (Pa.

____________________________________________

10It appears at least three different attorneys represented Appellant in the
pretrial and trial proceedings.

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2013), the Supreme Court of Pennsylvania reaffirmed the general rule first set

forth in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), “claims of

ineffective assistance of counsel are to be deferred to PCRA review; trial courts

should not entertain claims of ineffectiveness upon post-verdict motions; and

such claims should not be reviewed upon direct appeal.” Holmes, supra at

576. Although there are three recognized exceptions to that general rule, no

exception is applicable here.11 Accordingly, Appellant’s ineffective assistance

of counsel claims are not cognizable on direct appeal and must await collateral

review.

In his first claim, Appellant argues the trial court erred in not granting a

recess to allow trial counsel to obtain written jail records, which allegedly

would have allowed counsel to present an alibi defense to one of the drug

transactions. See Appellant’s Brief, at 14-20. Appellant made this request

____________________________________________

11 The Holmes Court recognized two exceptions: (1) where the trial court
determines a claim of ineffectiveness is “both meritorious and apparent from
the record so that immediate consideration and relief is warranted[;]” or (2)
where the trial court finds “good cause” for unitary review, and the defendant
makes a “knowing and express waiver of his entitlement to seek PCRA review
from his conviction and sentence, including an express recognition that the
waiver subjects further collateral review to the time and serial petition
restrictions of the PCRA.” Holmes, supra at 564, 577 (footnote omitted). A
third exception was recently adopted by our Supreme Court for “claims
challenging trial counsel’s performance where the defendant is statutorily
precluded from obtaining PCRA review.” Commonwealth v. Delgros, 183
A.3d 352, 361 (Pa. 2018) (“[W]here the defendant is ineligible for PCRA
review because he was sentenced only to pay a fine, we agree with Appellant
that the reasoning in Holmes applies with equal force to these
circumstances.”).

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after both he and the Commonwealth had rested their cases, as the trial court

was beginning to colloquy him about his decision not to testify. N.T. Trial Vol.

II, 4/15/16-4/20/16, at 786, 831-837.

Initially, we note to the extent Appellant is claiming the trial court erred

in denying a request for a recess, he waived the claim. We have thoroughly

examined the pertinent portion of the transcript and are unable to locate any

request for a recess. See Id. at 821-837. It is well settled what is not of

record does not exist for purposes of appellate review. Commonwealth v.

Johnson, 33 A.3d 122, 126 n.6 (Pa. Super. 2011). Therefore, Appellant

waived any challenge to the alleged denial of his request for a recess. See

Pa.R.A.P. 302.

To the extent Appellant argues the trial court abused its discretion by

excluding his proposed alibi defense, we disagree. According to Appellant, the

records would show he was incarcerated at the time of the July 9, 2012 drug

buy and thus could not have participated in it, contrary to the identification

testimony of the Commonwealth’s witnesses. The trial court ruled Appellant

could not use these records at trial because he failed to comply with the notice

requirements of Pa.R.Crim.P. 567.

Rule 567 provides, in relevant part:

Rule 567. Notice of Alibi Defense

(A) Notice by Defendant. A defendant who intends to offer the
defense of alibi at trial shall file with the clerk of courts not later
than the time required for filing the omnibus pretrial motion
provided in Rule 579 a notice specifying an intention to offer an

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alibi defense, and shall serve a copy of the notice and a certificate
of service on the attorney for the Commonwealth.

(1) The notice and a certificate of service shall be
signed by the attorney for the defendant, or the
defendant if unrepresented.

(2) The notice shall contain specific information as to
the place or places where the defendant claims to
have been at the time of the alleged offense and the
names and addresses of the witnesses whom the
defendant intends to call in support of the claim.

(B) Failure to File Notice.

(1) If the defendant fails to file and serve the notice of alibi as
required by this rule, the court may exclude entirely any evidence
offered by the defendant for the purpose of proving the defense,
except testimony by the defendant, may grant a continuance to
enable the Commonwealth to investigate such evidence, or may
make such other order as the interests of justice require.

Pa.R.Crim.P. 567.

Accordingly, Rule [567] enables the trial court, when the notice
requirement is not met, to take such measures as preventing an
alibi witness from testifying and to deny a request for an alibi
instruction. Rule [567] is designed to enhance the search for truth
in the criminal trial by insuring both the defendant and the state
ample opportunity to investigate certain facts crucial to the
determination of guilt or innocence.

Commonwealth v. Poindexter, 646 A.2d 1211, 1219 (Pa. Super. 1994)

(citation and quotation marks omitted). “The imposition of sanctions for

violations of Pa.R.Crim.P. [567] rests in the sole discretion of the trial court.”

Commonwealth v. Zimmerman, 571 A.2d 1062, 1067 (Pa. Super. 1990)

(citations omitted).

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Instantly, Appellant never filed a written alibi notice. As discussed

above, he first informed both trial counsel and the trial court of his intention

to provide an alibi for one of the drug transactions in the middle of trial after

both parties had rested their cases. This is well after the time required for

filing pre-trial motions. See Pa.R.Crim.P. 579(A).

Appellant appears to argue this was the fault of the trial court because,

after his second attorney withdrew, the trial court appointed new counsel a

week prior to trial and did not grant him any additional time to prepare. See

Appellant’s Brief, at 14. However, Appellant has failed to point to any proof

trial counsel or either of the two prior attorneys were aware Appellant had an

alleged alibi for the July 9, 2012 drug transaction.

The Commonwealth filed the criminal information, which included the

information it was charging Appellant for participating in a July 9, 2012 drug

transaction, on October 31, 2013. See Criminal Information, 10/31/13, at 4.

Appellant’s request to present the alibi evidence came on April 18, 2016.

Appellant has not provided any explanation whatsoever as to why he waited

over two years to reveal this information to counsel. Given this, we determine

the trial court did not abuse its discretion in not permitting Appellant to

present an alibi defense. See Zimmerman, 571 A.2d at 1067. Appellant’s

first claim does not merit relief.

In his second claim, Appellant contends the Commonwealth violated the

Wiretapping and Electronic Surveillance laws at 18 Pa.C.S.A. § 5701, et. seq.

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because the signature line on the consent form were either unsigned and/or

the signature of the confidential informants were hidden and, therefore the

trial court should have suppressed the wiretaps. See Appellant’s Brief, at 21-

25. However, Appellant waived this claim.

In reviewing a denial of a motion to suppress, this Court’s role is to

decide:

whether the suppression court’s factual findings are supported by
the record and whether the legal conclusions drawn from those
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. Where the suppression court’s factual findings are
supported by the record, we are bound by these findings and may
reverse only if the court’s legal conclusions are erroneous. Where,
as here, the appeal of the determination of the suppression court
turns on allegations of legal error, 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 ... Our scope of review is limited to
the evidence presented at the suppression hearing.

Commonwealth v. Thran, 185 A.3d 1041, 1043 (Pa. Super. 2018) (citations

omitted), appeal denied, 195 A.3d 558 (Pa. 2018).

Here, in its 1925(a) opinion, the trial court declined to address this issue

because Appellant had not raised it until after trial. See Trial Ct. Op., 3/11/19,

at 14. This finding is clearly supported by the record.

The record reflects Appellant filed three motions to suppress but did not

raise this issue in any of them. See Defendant’s Omnibus Pretrial Motion,

12/17/14, at unnumbered pages 1-3; Defendant’s Omnibus Pretrial Motion,

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10/02/15, at unnumbered pages 2-3; and Defendant’s Amended Omnibus

Pretrial Motion, 10/15/15, at unnumbered pages 2-3. Instead, he raised the

issue for the first time in his nunc pro tunc post-sentence motion, filed more

than eighteen months after the judgment of sentence. See Motion for Arrest

of Judgment or for a New Trial, 2/23/18, at 11-14. Appellant admits he did

not raise the claim before or during trial but argues we should address the

merits of the claim and grant him a new trial either because he received

ineffective assistance of counsel and/or because this was error on the part of

the Commonwealth. See Appellant’s Brief, at 21-25. We decline to do so.

We have held, “appellate review of [a ruling on] suppression is limited

to examination of the precise basis under which suppression initially was

sought; no new theories of relief may be considered on appeal.”

Commonwealth v. Little, 903 A.2d 1269, 1272–1273 (Pa. Super. 2006);

see also Commonwealth v. Thur, 906 A.2d 552, 566 (Pa. Super. 2006)

(“When a defendant raises a suppression claim to the trial court and supports

that claim with a particular argument or arguments, the defendant cannot

then raise for the first time on appeal different arguments supporting

suppression.”). Therefore, because Appellant did not raise the issue in his

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motion to suppress, he waived it.12 Appellant’s second issue does not merit

relief.

In his third issue, Appellant argues the assistant attorney general

committed prosecutorial misconduct during opening statements and when she

used Appellant’s full name on certain exhibits rather than the alias used by

the confidential informants. See Appellant’s Brief, at 25-28.13 However,

Appellant waived his claim of prosecutorial misconduct.

We briefly note our standard of review for a claim of prosecutorial

misconduct is limited to whether the trial court abused its discretion.

Commonwealth v. Harris, 884 A.2d 920, 927 (Pa. Super. 2005) (citation

omitted).

Here, we have thoroughly reviewed the record with respect to the claims

of prosecutorial misconduct concerning the assistant attorney general’s

opening statement, her use of a chart with Appellant’s name on it, and her

____________________________________________

12 Further, we agree with the Commonwealth’s argument this is precisely the
type of issue which the trial court could have easily resolved had Appellant
raised it properly below. See Commonwealth’s Brief, at 24-27. As the
Commonwealth notes, it obscured the signatures on the consent forms
because it had not yet disclosed the identities of the confidential informants.
See id. at 24-25. Had Appellant raised the issue below, the Commonwealth
could have provided unredacted forms to the trial court and/or trial counsel at
the appropriate time.

13 Appellant also contends the trial court erred in admitting certain unspecified
stipulations at trial, which pretrial counsel agreed to but trial counsel objected
to. See Appellant’s Brief, at 28. However, because this is identical to a claim
Appellant raised in his amended brief, we will address it later.

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distribution of transcripts to the jury with Appellant’s name on it, and are

unable to locate any objection made by trial counsel.

Our Supreme Court has held the failure to raise a contemporaneous

objection constitutes a waiver of the claim. See Commonwealth v. Powell,

956 A.2d 406, 423 (Pa. 2008). Furthermore, this Court will not overlook

waiver simply because the trial court addressed the issue in its 1925(a)

opinion. See Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278,

1287-1289 (Pa. Super. 2004) (en banc) (holding defendant’s failure to object

to admissibility of inflammatory photographs before or during trial waived

issue for review on appeal, despite fact defendant raised claim in Pa.R.A.P.

1925(b) statement and court addressed it in opinion). As a result, Appellant

waived his challenge to these claims.14 Appellant’s third claim does not merit

relief.

In his fourth claim, Appellant argues the trial court erred in denying his

motion to suppress the identification testimony of the confidential informants

and agents15 from the Attorney General’s office because they identified

____________________________________________

14In any event, we agree with the trial court, Appellant’s challenge to the
prosecutor’s opening statement lacks merit. See Trial Ct. Op., 3/11/19, at
14-15.

15To the extent Appellant challenges the identification by the agents, he
waived the claim because it was not raised in his motions to suppress. See
Defendant’s Omnibus Pretrial Motion, 12/17/14, at unnumbered pages 1-3;
Defendant’s Omnibus Pretrial Motion, 10/02/15, at unnumbered pages 2-3;
and Defendant’s Amended Omnibus Pretrial Motion, 10/15/15; see also

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Appellant from a single photo rather than from a photo array. Appellant’s

Brief, at 29-31. We disagree.

As noted above, we review “whether the suppression court’s factual

findings are supported by the record and whether the legal conclusions drawn

from those facts are correct.” Thran, 906 A.2d at 1043.

Whether an out of court identification is to be suppressed as
unreliable, and therefore violative of due process, is determined
from the totality of the circumstances. Suggestiveness in the
identification process is a factor to be considered in determining
the admissibility of such evidence, but suggestiveness alone does
not warrant exclusion. Identification evidence will not be
suppressed unless the facts demonstrate that the identification
procedure was so impermissibly suggestive as to give rise to a
very substantial likelihood of irreparable misidentification.

Commonwealth v. Fulmore, 25 A.3d 340, 346 (Pa. Super. 2011) (quotation

marks and citations omitted). The courts review the propriety of a challenged

identification to determine whether, under the circumstances, the

identification was reliable. See Commonwealth v. Kearney, 92 A.3d 51, 65

(Pa. Super. 2014).

Suggestiveness in the identification process is but one factor to be
considered in determining the admissibility of such evidence and
will not warrant exclusion absent other factors. As this Court has
explained, the following factors are to be considered in
determining the propriety of admitting identification evidence:
the opportunity of the witness to view the perpetrator at the time
of the crime, the witness’ degree of attention, the accuracy of his
prior description of the perpetrator, the level of certainty
____________________________________________

Little, 903 A.2d at 1272–1273; Thur, 906 A.2d at 566. To the extent he
challenges the identification by the second confidential informant, he waived
the claim because he abandoned it at the suppression hearing. See N.T.
Suppression Hearing, 12/23/14, at 31-54.

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demonstrated at the confrontation, and the time between the
crime and confrontation. The corrupting effect of the suggestive
identification, if any, must be weighed against these factors.

Id. (citation omitted).

Moreover, our Supreme Court has held, “[w]hile the use by police of a

single photograph of a suspect in securing identification by a witness can

constitute an improperly suggestive procedure, Manson v.

Brathwaite, 432 U.S. 98 . . . (1977), the reliability of a challenged

identification is to be judged under a test employing the totality of the

circumstances.” Commonwealth v. Buehl, 508 A.2d 1167, 1178 (Pa. 1986)

(some quotation marks omitted) (emphasis added). Here, our review of the

record demonstrates, under the totality of the circumstances, the

identification procedure was not improperly suggestive.

The record reflects the first confidential informant had been involved in

drug transactions for over six months with Appellant at the time the agent

showed him or her the photograph. See N.T., Suppression Hearing,

12/23/14, at 31-54. While he or she did not know Appellant’s name or

address, he or she met with him several times a week and provided a

description of him to the agents. See id. There was no testimony anyone

did anything to influence the informant’s identification. Thus, there is nothing

in the record that demonstrates the procedure was unduly suggestive. See

Buehl, supra at 1178. Appellant’s fourth claim does not merit relief.

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In his fifth claim, Appellant contends the trial court erred in not

suppressing evidence obtained from cell phones seized by the Commonwealth

without a warrant. See Appellant’s Brief, at 31-33. However, Appellant

waived this claim because he did not raise it in any of his pre-trial motions to

suppress, raising it for the first time in his nunc pro tunc post-sentence

motions. See Defendant’s Omnibus Pretrial Motion, 12/17/14, at unnumbered

pages 1-3; Defendant’s Omnibus Pretrial Motion, 10/02/15, at unnumbered

pages 2-3; and Defendant’s Amended Omnibus Pretrial Motion, 10/15/15, at

unnumbered pages 2-3; Motion for Arrest of Judgment or for a New Trial,

2/23/18, at 18-19. Thus, Appellant’s fifth claim does not merit relief. See

Little, 903 A.2d at 1272–1273; Thur, 906 A.2d at 566.

In his sixth claim, Appellant contends the trial court erred in denying his

motion for a judgment of acquittal with respect to the charge of corrupt

organizations.16 Appellant’s Brief, at 33-35. However, Appellant waived this

claim.

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16 The statute provides, in pertinent part:

(b) Prohibited activities.—

****

(3) It shall be unlawful for any person employed by or
associated with any enterprise to conduct or
participate, directly or indirectly, in the conduct of
such enterprise's affairs through a pattern of
racketeering activity.

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“A motion for judgment of acquittal challenges the sufficiency of the

evidence to sustain a conviction on a particular charge, and is granted only in

cases in which the Commonwealth has failed to carry its burden regarding that

charge.” Commonwealth v. Emanuel, 86 A.3d 892, 894 (Pa. Super. 2014).

We apply the following standard of review when considering a challenge to the

sufficiency of the evidence:

[W]hether[,] viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
____________________________________________

****
(h) Definitions.--As used in this section:

(1) “Racketeering activity” means all of the following:

****

(ii) An offense indictable under section 13 of the act
of April 14, 1972 (P.L. 233, No. 64), known as The
Controlled Substance, Drug, Device and Cosmetic Act
(relating to the sale and dispensing of narcotic drugs).

****

(3) “Enterprise” means any individual, partnership, corporation,
association or other legal entity, and any union or group of
individuals associated in fact although not a legal entity, engaged
in commerce and includes legitimate as well as illegitimate entities
and governmental entities.

(4) “Pattern of racketeering activity” refers to a course of
conduct requiring two or more acts of racketeering activity one of
which occurred after the effective date of this section.

18 Pa.C.S.A. §§ 911(b)(3), (h)(1)(ii), (h)(3), and (h)(4).

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a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant's guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the finder of fact[,] while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, or part or none of the evidence.

Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted).

Instantly, we are unable to address the merits of Appellant’s claim,

because his Rule 1925(b) statement did not sufficiently identify the error that

he intended to challenge on appeal.

As this Court has consistently held:

If Appellant wants to preserve a claim that the evidence was
insufficient, then the [Rule] 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 Rule] 1925(b) statement [ ] does not specify the
allegedly unproven elements[,] . . . the sufficiency issue is waived
[on appeal].

Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008)

(citation and emphasis omitted).

Here, Appellant’s Rule 1925(b) statement is nearly identical to his brief

on appeal and is all but incoherent. Appellant views the facts in the light most

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favorable to him and to the extent we can decipher his contention, it appears

to be less a challenge to the sufficiency of the evidence than a claim that the

jury’s verdict was inconsistent.17 See Concise Statements of Matters

Complained of on Appeal, 3/26/18, at 19-20; Appellant’s Brief, at 33-35. In

its Rule 1925(a) opinion, the trial court specifically found, because of

Appellant’s vague 1925(b) statement, he waived his sufficiency of the

evidence claim. Trial Ct. Op., 3/11/19, at 15-18.

We agree Appellant’s Rule 1925(b) statement did not identify which

element of the conviction he was challenging, and because of its disjointed

and discursive nature made it impossible to discern his claim. We must

conclude Appellant’s sufficiency of the evidence claim is waived on appeal.18

See Williams, supra at 1257. Appellant’s sixth claim does not merit relief.

____________________________________________

17 It is long settled:

[i]nconsistent verdicts, while often perplexing, are not considered
mistakes and do not constitute a basis for reversal. Rather, the
rationale for allowing inconsistent verdicts is that it is the jury’s
sole prerogative to decide on which counts to convict in order to
provide a defendant with sufficient punishment.

Commonwealth v. Thoeun Tha, 64 A.3d 704, 711 (Pa. Super. 2013).

18 In any event, we agree with the trial court’s analysis; the evidence was
sufficient to sustain the conviction. See Trial Ct. Op., 3/11/19, at 18; see
also Commonwealth v. Dellisanti, 876 A.2d 366, 370 (Pa. 2005) (applying
the Corrupt Organizations Act to fact pattern involving two defendants
involved in multiple sales of drug paraphernalia).

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In his seventh claim Appellant argues the trial court erred in admitting

hearsay evidence. See Appellant’s Brief, at 35-36. However, Appellant

waived the issue.

In its 1925(a) opinion, the trial court found Appellant waived the claim

as it was unable to ascertain the specifics of the claim from Appellant’s vague

statement. See Trial Ct. Op., 3/11/19, at 26-28. Again, we applaud the trial

court’s diligence in guessing and attempting to address the merits of the claim.

However, we are not certain the trial court addressed the correct issue as we

are unable to ascertain from Appellant’s argument on appeal the location of

the allegedly objected to testimony and whether Appellant preserved the issue

for appeal. Also, Appellant’s claim on appeal appears to be less a claim

regarding the admission of hearsay evidence than a claim the trial court should

have suppressed physical evidence either because of the admission of

hearsay, because the grand jury did not properly authorize the search

warrant, and the admission violated his rights under the Confrontation Clause

of the United States Constitution. See Appellant’s Brief, at 35-36.

Appellant’s argument is undeveloped and scattershot. This Court will

not act as counsel and will not develop arguments on behalf of an appellant.

See In re R.D., 44 A.3d 657, 674 (Pa. Super. 2012). When deficiencies in a

brief hinder our ability to conduct meaningful appellate review, we can dismiss

the appeal entirely or find certain issues to be waived. See Pa.R.A.P. 2101;

R.D., 44 A.3d at 674; see also Commonwealth v. Dowling, 778 A.2d 683,

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686 (Pa. Super. 2001) (finding waiver where 1925(b) statement was too

vague to allow trial court to ascertain specifics of appellant’s claim).

Accordingly, we find Appellant waived his seventh claim.

In his eighth claim, Appellant challenges the discretionary aspects of his

sentence, complaining the trial court miscalculated his prior record score19 and

argues his sentence was harsh and excessive. Appellant’s Brief, at 36-41.

However, Appellant waived this claim.

It is well-established “[a] challenge to the discretionary aspects of

sentencing does not entitle an appellant to review as of right.”

Commonwealth v. Bynum–Hamilton, 135 A.3d 179, 184 (Pa. Super.

2016). In order to invoke this Court’s jurisdiction to address such a challenge,

the appellant must satisfy the following four-part test: the appellant must (1)

file a timely notice of appeal pursuant to Pa.R.A.P. 902, 903; (2) preserve the

issues at sentencing or in a timely post-sentence motion pursuant to

Pa.R.Crim.P. 720; (3) ensure the appellant’s brief does not have a fatal defect

as set forth in Pa.R.A.P. 2119(f); and (4) set forth a substantial question the

____________________________________________

19 While Appellant attempts to argue otherwise in his reply brief, see
Appellant’s Reply Brief, at 4-5, it is settled a challenge to the calculation of
the prior record score goes to the discretionary aspects, not legality of
sentence. See Commonwealth v. Sanchez, 848 A.2d 977, 986 (Pa. Super.
2004) (holding miscalculation of prior record score “constitutes a challenge to
the discretionary aspects of [a] sentence”); see also Commonwealth v.
O’Bidos, 849 A.2d 243, 253 (Pa. Super. 2004) (same).

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sentence appealed from is not appropriate under the Sentencing Code under

42 Pa.C.S.A. § 9781(b). Id.

While Appellant filed a timely notice of appeal and preserved his

sentencing claim in a post-sentence motion, the Commonwealth objects to his

failure to include a Rule 2119(f) statement in his appellate brief. When

challenging the discretionary aspects of sentence, “an appellant must include

in his or her brief a separate concise statement demonstrating that there is a

substantial question as to the appropriateness of the sentence under the

Sentencing Code. Commonwealth v. Griffin, 149 A.3d 349, 353–54 (Pa.

Super. 2016) (citation omitted), affirmed, 207 A.3d 827 (Pa. 2019). “Where

an appellant fails to comply with Pa.R.A.P. 2119(f) and the Commonwealth

objects, the issue is waived for purposes of review.” Commonwealth v.

Montgomery, 861 A.2d 304, 308 (Pa. Super. 2004). In this case, the

Commonwealth’s objection to Appellant’s failure to adhere to our rules

requiring inclusion of a Rule 2119(f) statement in his appellate brief results in

the waiver of Appellant’s sentencing claim on appeal. Appellant’s eighth claim

does not merit relief.

In his ninth and tenth claims, Appellant maintains the trial court erred

in denying his motion to quash and his speedy trial motion. Appellant’s

Amended Brief, at unnumbered pages 3-4. However, Appellant waived both

claims.

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We briefly note our standards of review for both issues is an abuse of

discretion. Commonwealth v. Holt, 175 A.3d 1014, 1018 (Pa. Super. 2017)

(citation omitted) (standard of review speedy trial); Commonwealth v.

Wyland, 987 A.2d 802, 804–05 (Pa. Super. 2010) (citations and quotation

marks omitted) (standard of review denial of motion to quash).

Instantly, Appellant claims a hearing on both motions took place on

November 20, 2015. See Appellant’s Addendum to Concise Statement,

7/03/18, at 1-2; Appellant’s Amended Brief, at unnumbered pages 3-4.

However, the docket does not list a motion hearing on that date. Further, our

review of the certified record demonstrates it does not contain a transcript for

that date and none of the other transcripts contain any hearing on these

issues. In his notice of appeal, Appellant did not request any transcripts,

stating he was already in possession of them. See Notice of Appeal, 3/05/18,

at Certificate of Service.

We have stated “[w]hen the appellant . . . fails to conform to the

requirements of [Pa.R.A.P.] 1911 [relating to transcript requests], any claims

that cannot be resolved in the absence of the necessary transcript or

transcripts must be deemed waived for the purpose of appellate review.”

Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en banc)

(citation omitted). Further, it is the appellant’s responsibility to make certain

the certified record contains all items necessary to ensure that this Court is

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able to review his claims. See Commonwealth v. B.D.G., 959 A.2d 362,

372 (Pa. Super. 2008) (en banc). This Court has stated:

It is black letter law in this jurisdiction that an appellate court
cannot consider anything which is not part of the record in the
case. It is also well-settled in this jurisdiction that it is Appellant’s
responsibility to supply this Court with a complete record for
purposes of review. A failure by appellant to insure that the
original record certified for appeal contains sufficient information
to conduct a proper review constitutes waiver of the issue sought
to be examined.

Commonwealth v. Martz, 926 A.2d 514, 524-25 (Pa. Super. 2007)

(citations and quotation marks omitted). Because Appellant failed to ensure

the certified record contained the necessary transcripts to enable us to review

his claims, he waived them. Thus, Appellant’s ninth and tenth claims do not

merit relief.

In part of his third and his eleventh claim, Appellant contends, “the

stipulations which was [sic] objected to made the outcome a foregone

conclusion.” Appellant’s Amended Brief, at unnumbered page 4; see also

Appellant’s Brief, at 28. It is not clear from Appellant’s undeveloped

arguments on this issue whether Appellant is alleging error because pre-trial

counsel agreed to unspecified stipulations20 over his objections, if he is

____________________________________________

20 While Appellant cites to various pages in the trial transcript which he
contends contain the stipulations in question, we have been unable to locate
them. See Appellant’s Amended Brief, at unnumbered page 4. To the extent
we are able to discern the specifics of the claim, they appear to relate to
stipulations regarding the admission of bank records and the items seized from
Appellant’s residences.

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claiming trial court should not have bound trial counsel to stipulations entered

into with pre-trial counsel, or if he claims the assistant attorney general

somehow committed misconduct by presenting stipulations agreed to in

advance by prior defense counsel. Appellant attempts to avoid a finding of

waiver by claiming both that he personally disagreed with pre-trial counsel’s

decision to agree to the stipulations, see N.T. Suppression Hearing, 12/23/14,

at 81-91, and by noting trial counsel objected to the admission of the

stipulations at trial, see N.T. Trial Vol. I., 4/12/16, at 330-35.

However, Pennsylvania law does not allow hybrid representation either

at trial or on the appellate level. See Commonwealth v. Padilla, 80 A.3d

1238, 1259 (Pa. 2013). Moreover, the United States Supreme Court has held

there are numerous choices relating to the conduct of trial, and, with respect

to choices by counsel regarding the admission of evidence, the defendant is

bound. See United States v. Gonzalez, 553 U.S. 242, 248-49 (2008).

Accordingly, at least for purposes of direct appeal, Appellant cannot avoid

waiver by claiming he personally disagreed with counsel’s decision to agree to

the stipulations. Moreover, Appellant has not pointed to, and we cannot

locate, any pertinent law which allows new counsel to disavow stipulations

entered into by prior counsel and we see no basis to upset the trial court’s

finding that prior counsel’s stipulation bound trial counsel. These parts of

Appellant’s third and eleventh claim do not merit relief.

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In his twelfth claim, Appellant appears to argue the Pennsylvania

Supreme Court’s decision in Besch, 674 A.2d 655 (Pa. 1996), invalidates his

conviction for corrupt organizations. See Appellant’s Amended Brief, at

unnumbered pages 4-5.21 We disagree.

In Besch, our Supreme Court held the prosecution of a completely

illegitimate drug trafficking organization was not within the scope of the

version of Pennsylvania’s corrupt organization law, which was then in effect.

Besch, 674 A.2d at 659. In response to Besch, however, the legislature

amended the law to include wholly illegitimate organizations such as drug

trafficking rings. See 18 Pa.C.S. § 911(h)(3), as amended, June 19, 1996

(effective immediately). In Kendrick v. District Attorney of Philadelphia

County, 916 A.2d 529 (Pa. 2007), our Supreme Court revisited Besch, and,

while declining to overturn it, specifically limited its holding to those cases that

arose prior to June 19, 1996, the effective date of the amended corrupt

organization law. Kendrick, 916 A.2d at 540. As Appellant’s case arose in

2013, after the effective date of the 1996 amendment, Besch is inapplicable.

Appellant’s twelfth claim does not merit relief.

Appellant’s issues are either waived or lack merit. As a result, we affirm

the judgment of sentence.

____________________________________________

21We note that while Appellant refers to Besch repeatedly in his argument,
he does not actually cite the case at any point. See Appellant’s Amended Brief,
unnumbered at 4-5.

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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/13/2020

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