J-S67025-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KOREY C. HOLMES
Appellant No. 3405 EDA 2015
Appeal from the Judgment of Sentence October 8, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0009308-2012
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY RANSOM, J. FILED OCTOBER 12, 2016
Appellant, Korey C. Holmes, appeals from the judgment of sentence of
sixteen to eighty-four months’ imprisonment and one year of probation,
imposed after his conviction for possession of cocaine with intent to deliver,
simple possession of cocaine, and possessing drug paraphernalia.1 We
affirm.
The facts elicited at the trial in this case showed the following: Police
entered Appellant’s home December 5, 2012, to serve legal process in a
matter unrelated to the instant case. There, officers discovered Appellant
smoking a marijuana cigarette in the company of three other men, and other
evidence of drug activity. A search of the premises and Appellant’s person
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1
35 P.S. § 113(a)(30), 35 P.S. § 780-113(a)(16), 35 P.S. § 780(a)(32).
*
Former Justice specially assigned to the Superior Court.
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resulted in the recovery of one marijuana cigarette, $90 in cash in
Appellant’s right pants pocket, twenty-nine blue-tinted bags of crack cocaine
within a larger plastic bag in his left pants pocket, and a digital scale.
At trial, the Commonwealth introduced the expert testimony of
Detective James Wood, who opined that, based on the evidence and his
experience and training, Appellant possessed the cocaine with intent to
deliver. Detective Wood based his opinion on the following factors: 1) the
scale recovered at the scene was the type typically used by drug dealers in
measuring illegal drugs for packaging and individual sale; 2) the bags were
of a type typically used by drug dealers for individual resale; 3) the amount
of cocaine contained within each packet was an amount typically used by
drug dealers in individual resale; 4) the number of individual packages
recovered was higher than a typical user would possess for personal use; 5)
the packets recovered could be sold individually for a significant profit over
the cost of making a bulk purchase of that total amount of cocaine; 6) from
Wood’s personal observation, Appellant did not exhibit typical physical
characteristics of a cocaine user; 7) no paraphernalia associated with
cocaine users was discovered at the scene; and 8) the amount of currency
discovered on Appellant’s person was consistent with the sale of cocaine.
Trial Court Opinion (TCO), 1/5/16, at 6-7 (internal citations to the record
omitted), see also Notes of Testimony (N. T.), 6/20/13, at 47-62.
On June 20, 2013, following trial, a jury convicted Appellant of the
above-enumerated offenses. On July 9, 2013, the Commonwealth filed
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notice of its intention to seek a mandatory minimum sentence pursuant to
18 Pa.C.S. § 7508. On September 3, 2013, the sentencing court imposed
the mandatory minimum sentence and sentenced Appellant to three to
seven years’ imprisonment on the possession with intent to deliver
conviction, and a concurrent one-year probationary sentence for possession
of drug paraphernalia.2 Appellant timely filed a post-sentence motion
challenging the weight of the evidence; however, the motion was docketed
in error by the Montgomery County Clerk of Courts and was not forwarded to
the sentencing court. Subsequently, Appellant’s counsel discovered the
error and on January 27, 2014, filed a motion for reinstatement of the post-
sentence motion nunc pro tunc, which the court granted January 29, 2014.
On April 3, 2014, Appellant filed a supplemental post-sentence motion
contending the mandatory minimum sentence imposed was illegal pursuant
to Alleyne v. United States, 133 S. Ct. 2151 (2013), which had been
decided two days prior to Appellant’s trial. The court determined Appellant
had not established a right to relief on the weight of the evidence claim, but
that the mandatory minimum sentence was illegal. On June 5, 2014, the
court denied Appellant’s post-sentence weight claim and granted Appellant’s
Alleyne claim, vacated his sentence, and scheduled the matter for
resentencing. On July 7, 2014, the Commonwealth timely appealed directly
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2
The sentence for simple possession merged, for sentencing purposes, with
that of the possession with intent to deliver.
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to the Supreme Court of Pennsylvania, which affirmed the trial court on
August 31, 2015. Commonwealth v. Holmes, 121 A.3d 987 (Pa. 2015)
(unpublished memorandum).
On October 8, 2015, the sentencing court imposed a standard range
sentence of sixteen to eighty-four months’ imprisonment for possession with
intent to deliver, and one year of probation on the conviction for possession
of drug paraphernalia. Appellant timely appealed pro se and filed a court-
ordered Pa.R.A.P. 1925(b) statement. The trial court issued a responsive
opinion on January 5, 2016.
Appellant presents a single issue for our review, namely:
Whether the trial court erred in denying Appellant Holmes’ post
sentence motion for a new trial based on the weight of the
evidence where defendant’s conviction for possession with intent
to deliver was manifestly against the weight of the evidence
insofar as the only evidence regarding the Appellant’s intent to
deliver was the testimony of Detective James Woods, which
opinion was unreliable, insofar as it was self-contradicting, highly
speculative, and based on facts not in evidence, as stated more
fully in said motion.
Appellant’s Brief, at 4.
The law regarding weight of the evidence claims is well-settled.
A claim alleging the verdict was against the weight of the
evidence is addressed to the discretion of the trial court.
Accordingly, an appellate court reviews the exercise of the trial
court's discretion; it does not answer for itself whether the
verdict was against the weight of the evidence. It is well settled
that the jury is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses, and 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. In determining whether this standard has
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been met, appellate review is limited to whether the trial judge’s
discretion was properly exercised, and relief will only be granted
where the facts and inferences of record disclose a palpable
abuse of discretion.
Commonwealth v. Houser, 18 A.3d 1128, 1135-1136 (Pa. 2011) (citations
and internal quotation marks omitted).
Appellant contends that the jury’s verdict was against the weight of
the evidence. In so doing, Appellant attacked the credibility and reliability of
Detective Wood’s testimony and opinion, as well as the credibility and
reliability of the forensic chemistry expert’s testimony. In such cases,
“[w]hen the challenge to the weight of the evidence is predicated
on the credibility of trial testimony, our review of the trial court's
decision is extremely limited. Generally, unless the evidence is
so unreliable and/or contradictory as to make any verdict based
thereon pure conjecture, these types of claims are not
cognizable on appellate review.”
Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa. Super. 2007), quoting
Commonwealth v. Rossetti, 863 A.2d 1185, 1191 (Pa. Super. 2004)
(citation omitted); see also Commonwealth v. Hankerson, 118 A.3d 415,
420 (Pa. Super. 2015) (noting that this Court may not re-assess the
credibility of a witness’ testimony when ruling on a weight of the evidence
claim).
As noted by the trial court, Detective Wood’s testimony and opinion
were based on facts in the record, his extensive experience and training in
the field of illegal narcotics trafficking, and his personal participation in more
than 1,000 drug investigations and arrests. See TCO at 6. It was the jury’s
role to evaluate this testimony and give it such weight as they saw fit, and
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they properly found that there was nothing inherently unreliable or
impermissibly speculative in Detective Wood’s testimony. See TCO, at 6-8.
Thus, the jury heard the evidence, evaluated it, and found Detective Wood’s
testimony credible, and we decline to re-assess the jury’s credibility
determination. See Hankerson, 118 A.3d at 420.
Moreover, Appellant vigorously challenged the testimony of both
Detective Wood and the Commonwealth’s forensic expert during cross-
examination before the jury, covering many of the issues he now raises on
appeal.3 The jury, in their role as fact-finder, has heard, considered, and
subsequently rejected Appellant’s arguments. Thus, Appellant’s claim is
without merit.
This Court discerns no abuse of discretion in the trial court’s decision
to deny Appellant’s post-sentence motion and, based upon the above, the
verdict was not so contrary to the evidence as to shock one’s sense of
justice. See Houser, 18 A.3d at 1135-1136.
Order affirmed.
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3
See N. T., 6/20/13, at 26, 29, 32-33, 36-37, 57, 59, 62-90; see also N. T.
6/20/13, at 15-35, 38-39.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2016
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