Opinion
803 EDA 2023
01-10-2024
COMMONWEALTH OF PENNSYLVANIA v. MANUEL RODRIGUEZ Appellant
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered February 13, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007174-2021
Benjamin D. Kohler, Esq.
BEFORE: BOWES, J., STABILE, J., and DUBOW, J.
MEMORANDUM
DUBOW, J.
Appellant, Manuel Rodriguez, appeals from the February 13, 2023 judgment of sentence entered in the Court of Common Pleas of Philadelphia County following his conviction after a bench trial for Possession with Intent to Deliver ("PWID") and Knowing and Intentional Possession of a Controlled Substance ("Possession"). Appellant challenges the sufficiency and weight of the evidence underlying his convictions. After careful review, we affirm.
35 P.S. §§ 780-113(A)(30) and (A)(16), respectively.
A.
On January 15, 2021, while conducting narcotics surveillance near the corner of Ella Street and Indiana Avenue in Philadelphia, Philadelphia Police Officer Anthony Woltman observed Appellant exchange small objects for money, first at 1:54 P.M. with a man and a woman, then again at 2:00 P.M. with two women. Backup officers ultimately stopped all four buyers and recovered fentanyl from three of the buyers and fentanyl and crack cocaine from the fourth. Then, at 2:11 P.M., Appellant abruptly left the corner after talking to a small group of men. He had been out of Officer Woltman's sight for approximately two minutes when backup officers arrested him and recovered one $20 bill and one $1 bill.
The Commonwealth charged Appellant with PWID, Possession, and Conspiracy. On June 28, 2022, Appellant proceeded to a bench trial. Officer Woltman testified in accordance with the above facts, and the parties stipulated to the backup officers' testimony.
The record contains a transcript of Appellant's waiver colloquy. Although the transcript is labeled "Guilty Plea," Appellant did not plead guilty, and the colloquy pertains only to his right to a jury trial. N.T., 6/28/22, at 1-6, 26-27.
The court found Appellant guilty of PWID and Possession but acquitted him of Conspiracy. The court scheduled sentencing for August 23, 2022, and ordered a presentence investigation. However, Appellant failed to appear for his sentencing, and the court issued a bench warrant. After Appellant was apprehended, the court sentenced him on February 13, 2023, to 18-36 months of incarceration for his PWID conviction. Appellant did not file a post-sentence motion.
Appellant received a sentence of No Further Penalty for the Possession conviction.
B.
Appellant timely filed a Notice of Appeal. Both he and the trial court complied with Pa.R.A.P. 1925.
Appellant's trial counsel, Andrew Montroy, Esquire, filed the Notice of Appeal, then moved to withdraw. The trial court granted his motion and appointed Gary Server, Esquire, for this appeal.
Appellant raises the following issues for our review:
I. Whether the adjudication of guilt is against the weight of the evidence and shocking to one's sense of justice that the Appellant engaged in the illegal sales of a controlled substance where no controlled substance was found on the Appellant's person and where the amount of money found on the Appellant's person did not match the value of the alleged substances the Appellant allegedly passed and which were confiscated from the alleged buyers?
II. Whether the Appellant's convictions for PWID and [Possession] are based upon insufficient evidence where the objects the Appellant allegedly passed off to buyers could not be specifically identified, where the Appellant was not found to be in possession of a controlled substance on his person and where the amount of money confiscated from the Appellant did not match the value of the controlled substances confiscated from the alleged buyers?Appellant's Br. at 6.
Although Appellant also challenged the discretionary aspects of his sentence in his Rule 1925(b) Statement, he notes in his brief that his sentencing challenge "does not present a substantial question" and therefore "appears to be a wholly frivolous claim." Appellant's Br. at 7-8. He has, thus, abandoned the issue. In any event, Appellant failed to preserve the issue for our review because he did not raise it either in a post-sentence motion or at sentencing. Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013).
C.
Appellant first challenges the weight of the evidence supporting his conviction. Appellant's Br. at 12-13. This claim is waived because he failed to first raise it in a motion before the trial court.
A challenge to the weight of the evidence must be raised before the trial court either orally or in a written motion. Pa.R.Crim.P. 607. This Rule provides that:
(A) A claim that the verdict was against the weight of the evidence shall be raised with the trial judge in a motion for a new trial:
(1) orally, on the record, at any time before sentencing;
(2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.Pa.R.Crim.P. 607(A)(1)-(3). "As noted in the comment to Rule 607, 'the purpose of this rule is to make it clear that a challenge to the weight of the evidence must be raised with the trial judge or it will be waived.'" Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa. Super. 2004) (quoting Pa.R.Crim.P. 607 cmt.). "An appellant's failure to avail himself of any of the prescribed methods for presenting a weight of the evidence issue to the trial court constitutes waiver of that claim[,]" even if the trial court responds to the claim in its Rule 1925(a) opinion. Commonwealth v. Weir, 201 A.3d 163, 167 (Pa. Super. 2018); see also Commonwealth v. Burkett, 830 A.2d 1034, 1037 n.3 (Pa. Super. 2003).
Our review of the trial court record indicates that Appellant did not raise his challenge to the weight of the evidence at any time at or before sentencing or in a post-sentence motion. Accordingly, Appellant has waived this claim.
D.
Appellant next attempts to challenge the sufficiency of the evidence for both PWID and Possession. Appellant's Br. at 14. He argues that the court drew unreasonable inferences from circumstantial evidence and, therefore, the evidence was insufficient to prove he possessed or sold drugs. Id.
Our rules of appellate procedure require conformance with particular briefing requirements. Specifically, the Argument section of an appellant's brief must contain citations to the record and to relevant legal authority that supports his arguments. Pa.R.A.P. 2119 (a), (c). When an appellant fails to develop an argument sufficiently for our review, we may dismiss the appeal or find that issue waived. Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007); Pa.R.A.P. 2101 (explaining that substantial briefing defects may result in dismissal of appeal); see also Commonwealth v. B.D.G., 959 A.2d 362, 371-72 (Pa. Super. 2008) (finding issue waived where the appellant failed to cite any pertinent authority to support his argument).
Further, "[w]e shall not develop an argument for an appellant, nor shall we scour the record to find evidence to support an argument[.]" Milby v. Pote, 189 A.3d 1065, 1079 (Pa. Super. 2018). Therefore, when an appellant fails to develop his issue in an argument, the issue is waived. Sephakis v. Pa. State Police Bureau of Records and Identification, 214 A.3d 680, 686-87 (Pa. Super. 2019).
Here, Appellant cites to boilerplate case law for our standard of review, and in the ensuing one-paragraph "argument," he fails to cite to the statutes defining his offenses, cites no case law, and utterly fails to support his implication that circumstantial evidence is not sufficient to support the charged crimes with any analysis. Appellant's Br. at 14. Moreover, Appellant fails to provide any citation to the record. Id.
Appellant's failure to develop his issues has significantly hampered this Court's ability to conduct meaningful appellate review. Accordingly, Appellant's second issue is waived.
E.
In sum, we conclude that Appellant waived his challenges to the sufficiency and weight of the evidence.
Judgment of sentence affirmed.
Judge Stabile joins the memorandum.
Judge Bowes concurs in result.
Judgment Entered.