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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ROBERTO LOPEZ
Appellant No. 3745 EDA 2015
Appeal from the Judgment of Sentence November 20, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009276-2014
BEFORE: BOWES, PANELLA AND FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J.: FILED JANUARY 18, 2017
Roberto Lopez appeals from his judgment of sentence of nine to
twenty-three months incarceration followed by four years probation imposed
for his convictions for possession with intent to deliver (“PWID”), conspiracy
to commit PWID, possession of drug paraphernalia, and possession of a
controlled substance. We affirm.
The trial court set forth the pertinent facts as follows:
On June 3, 2014, at about 2:30 p.m., Officer Nicholas
Cessna set up a “buy bust” narcotics operation with a
confidential informant (“CI”) in the area of 3900 Castor Avenue.
Since the CI did not speak English, he dealt directly with Agent
Chaves. . . . a price was negotiated for $90 a bundle for 50
bundles of heroin. Prior to meeting with their CI, other officers
and agents assigned to the squad conducted a surveillance of
the location. The other officers notified them that there were
two males, later identified as Angel Caneles and Omar
Rodriguez, using a cellular telephone outside of the Rite Aid on
* Former Justice specially assigned to the Superior Court.
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the corner of 3900 Castor Avenue. Mr. Caneles informed the CI
that “the drugs were close by.” At that time, with Officer Cessna
parked across the street, Mr. Caneles and Mr. Rodriguez walked
over to a burgundy Kia minivan operated by [Appellant].
Officer Cessna observed Mr. Caneles “walking briskly with
his arms swinging” towards [Appellant’s] minivan. Officer
Cessna followed them in his vehicle and witnessed Mr. Caneles
and Mr. Rodriguez enter the minivan. The minivan circled
around the block at which point Mr. Caneles and Mr. Rodriguez
exited. After Mr. Caneles exited [Appellant’s] minivan, Officer
Cessna witnessed him walk toward the CI’s vehicle “kind of like –
like checking his side a bit.” Mr. Caneles entered the CI’s
vehicle, at which time, the CI gave Agent Chaves the signal that
the narcotics were on location.
Trial Court Opinion, 2/11/16, at 2 (internal citations omitted). Officers
apprehended Mr. Caneles, Mr. Rodriguez, and Appellant. A search of the
CI’s vehicle recovered 902 packets of heroin contained within a black plastic
bag.
Based on the foregoing, Appellant was charged with PWID, conspiracy
to commit PWID, possession of drug paraphernalia, and possession of a
controlled substance.1 Following a non-jury trial, Appellant was found guilty
of all charges. At a subsequent hearing, the court sentenced Appellant to
nine to twenty-three months incarceration followed by four years probation.
Appellant did not file a post-sentence motion, but rather, filed a timely
notice of appeal. The court ordered Appellant to file a Rule 1925(b) concise
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1
Appellant was also charged with dealing in the proceeds of unlawful activity
and criminal use of a communication facility. Those charges were dismissed
by the lower court.
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statement of matters complained of on appeal, to which he complied, and
authored its own Rule 1925(a) opinion. This matter is now ready for our
consideration.
Appellant raises a single contention for our review: “Were the verdicts
against the weight of the evidence and shock the conscience?” Appellant’s
brief at 2 (capitalization omitted).
In order to preserve a challenge to the weight of the evidence, “a
defendant must present his challenge to the weight of the evidence to the
trial court for a review in the first instance.” Commonwealth v. Stiles,
143 A.3d 968, 980 (Pa.Super. 2016). A weight of the evidence claim must
be preserved either in a post-sentence motion, by a written motion before
sentencing, or orally prior to sentencing. Commonwealth v. Ford, 141
A.3d 547, 556 (Pa.Super. 2016); Pa.R.Crim.P. 607. The failure to properly
preserve a weight of the evidence claim will result in waiver, even if the trial
court addresses the issue in its opinion. Commonwealth v. Thompson, 93
A.3d 478, 490-491 (Pa.Super. 2014). Appellant failed to preserve his weight
issue as he did not file a post-sentence motion raising the allegation nor did
he make an oral or written motion before sentencing. Therefore, the claim
is waived.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/18/2017
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Com. v. Lopez, R.
Combined Opinion