J-S04029-15

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SHAVAR L. THOMPSON,

Appellant No. 902 MDA 2014

Appeal from the Judgment of Sentence entered March 20, 2014,

in the Court of Common Pleas of Dauphin County,

Criminal Division, at No(s): CP-22-CR-0003090-2013

BEFORE: BOWES, ALLEN, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.: FILED FEBRUARY 11, 2015

Shavar L. Thompson, (“Appellant”), appeals from the judgment of 

sentence imposed after a jury convicted him of three counts of delivery of a 

controlled substance.1 We affirm.

Appellant’s convictions arose after the Harrisburg Bureau of Police 

received information from a confidential informant that Appellant was selling 

crack cocaine in the City of Harrisburg. Trial Court Opinion, 10/21/14, at 2. 

Thereafter, Harrisburg Police Detectives Dennis Simmons and Donald 

Heffner, along with Patrolman Olivia Conner of the Pennsylvania State 

____________________________________________

1 35 P.S. § 780-113(a)(30).
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Capitol Police, arranged three controlled cocaine purchases between 

Appellant and the confidential informant and/or an undercover police officer, 

on May 10, 2013, May 16, 2013 and June 3, 2013. The trial court 

summarized the procedural history that followed: 

Appellant, Shavar Thompson, was arrested in connection 

with drug transactions that took place on May 10, May 16, and 

June 3, 2013, in Harrisburg, Pennsylvania. Appellant was 

charged with three counts of Unlawful Delivery of a Controlled 

Substance, and one count of Possession With Intent to Deliver a 

Controlled Substance. After a jury trial held on March 18-19, 

2014, Appellant was found not guilty of Count 1 (PWID) and 

guilty on Counts 2, 3 and 4 (Delivery). He was sentenced that 

same day to an aggregate term of incarceration of forty-five (45) 

to one hundred eight (108) months along with $1500 in fines, 

payment of the costs of prosecution.

Appellant filed a timely post-sentence motion on March 25, 

2014, which [the trial court] denied on April 28, 2014. 

Subsequently, on May 28, 2014, Appellant timely filed the 

instant appeal. [Both Appellant and the trial court have complied 

with Pa.R.A.P. 1925].

Trial Court Opinion, 10/21/14, at 1-2.

Appellant presents two issues for our review:

I. WHETHER THE TRIAL COURT ERRED IN DENYING 

APPELLANT’S POST-SENTENCE MOTION WHERE THE 

JURY’S VERDICT OF GUILTY ON ALL COUNTS WAS 

AGAINST THE WEIGHT OF THE EVIDENCE WHERE THE 

COMMONWEALTH FAILED TO PROVE THAT APPELLANT 

COMMITTED THE CRIMES CHARGED?

II. WHETHER THE TRIAL COURT ERRED IN DENYING 

APPELLANT’S POST-SENTENCE MOTION AS APPELLANT’S 

SENTENCE IS EXCESSIVE AND UNREASONABLE WHERE IT 

IS INCONSISTENT WITH THE GRAVITY OF THE VIOLATION 

AND APPELLANT’S REHABILITATIVE NEEDS AND WHERE 
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THE PUNITIVE MEASURES INHERENT IN THIS 

SENTENCING SCHEME COULD HAVE BEEN ACCOMPLISHED 

WITH THE IMPOSITION OF A LESSER SENTENCE?

Appellant’s Brief at 6.

In his first issue, Appellant challenges the weight of the evidence.2 

Our scrutiny of whether a verdict is against the weight of the evidence is 

governed by the principles set forth in Commonwealth v. Champney, 832 

A.2d 403, 408 (Pa. 2003) (citations omitted):

The weight of the evidence is exclusively for the finder of 

fact who is free to believe all, part, or none of the evidence and 

to determine the credibility of the witnesses. An appellate court 

cannot substitute its judgment for that of the finder of fact. 

Thus, we may only reverse the lower court's verdict if it is so 

contrary to the evidence as to shock one's sense of justice. 

____________________________________________

2

In its Pa.R.A.P. 1925(a) opinion, the trial court concluded that 

Appellant had waived his weight of the evidence claim. See Trial Court 

Opinion, 10/21/14, at 10. The trial court observed that although, in his 

concise statement, Appellant raised a challenge to the weight of the 

evidence, the substance of his claim (that the Commonwealth “failed to 

prove he committed the crime charged”) was truly a sufficiency claim. The 

trial court reasoned that “when a defendant makes a weight of the evidence 

claim ‘he concedes that sufficient evidence exists to sustain the jury’s 

verdict.’ Commonwealth v. Rosetti, 863 A.2d 1185, 1191-1192 (Pa. 

Super. 2004).” Id. The trial court concluded that “Appellant’s weight of the 

evidence claim must fail as he supports his claim by asserting that the 

Commonwealth ... failed to present sufficient evidence to sustain the jury’s 

verdict” which “did not present a weight of the evidence claim” that the trial 

court could consider. Id.

Upon review, however, we disagree, and conclude that Appellant’s 

weight of the evidence claim has been adequately developed to preserve it 

for appellate review. Accordingly, we address the merits of Appellant’s 

weight of the evidence challenge.
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Moreover, where the trial court has ruled on the weight 

claim below, an appellate court's role is not to consider the 

underlying question of whether the verdict is against the weight 

of the evidence. Rather, appellate review is limited to whether 

the trial court palpably abused its discretion in ruling on the 

weight claim. 

Appellant argues that the Commonwealth’s evidence was contradictory 

and unreliable and could not support a guilty verdict. Appellant’s Brief at 

18-19. Specifically, Appellant asserts that the detectives’ testimony was not 

credible because Detective Heffner, who was present during the May 16, 

2013 cocaine purchase, was unable to see Appellant and the confidential 

informant engage in a hand-to-hand transaction, although he was “a mere 

half block” away. Id. at 19. Appellant claims that he did not sell cocaine to 

the confidential informant on May 16, 2013, but “met the CI in the alleyway 

out of the purview of his girlfriend since he and the CI were sexually 

intimate. When the CI asked Appellant to do drugs, Appellant refused and 

walked away.” Id. at 18. Additionally, Appellant argues that the testimony 

of Detectives Heffner and Simmons conflicted with regard to Appellant’s 

location at the time of his arrest, specifically, whether Appellant was inside 

or outside the police vehicle. Appellant’s Brief at 18-19. Accordingly, 

Appellant argues that the trial court erred in denying his post-sentence 

motion for a new trial.

“A new trial is warranted on a challenge to the weight of the evidence 

only if the verdict is so contrary to the evidence as to shock one's sense of 
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justice. Furthermore, issues of credibility are left to the trier of fact; the jury 

is free to accept all, part, or none of the witness testimony.” 

Commonwealth v. Russell, 665 A.2d 1239, 1246-1247 (Pa. Super. 1995) 

(citations omitted). Here, the jury found the detectives’ testimony regarding 

the controlled purchases of cocaine from Appellant to be credible, and did 

not find any of the slight variations in the testimony to affect credibility. 

See N.T., 3/18-19/14, at 39-97. While Appellant asserts that the testimony 

of the Commonwealth’s witnesses was unreliable and contradictory, 

credibility determinations are for the jury to resolve, and we will not disturb 

such credibility determinations on appeal. See Commonwealth v. CruzCenteno, 668 A.2d 536, 541 (Pa. Super. 1995) (it is solely for the finder of 

fact to determine the credibility of witnesses and to resolve any conflicts or 

inconsistencies in the evidence). Although Appellant testified to a different 

version of events, and asserts that his testimony was more credible than the 

Commonwealth’s, the jury, within its province as fact finder, was free to 

disbelieve Appellant’s version of events and credit the testimony of the 

Commonwealth’s witnesses. We reiterate that questions of credibility and 

evidentiary weight are within the sole discretion of the jury, which we will 

not disturb on appeal. Upon review, we find no error in the trial court’s 

determination that the verdict does not shock one’s sense of justice. 

Champney, supra.
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In his second issue, Appellant argues that the trial court abused its 

discretion when it sentenced him to a term of imprisonment of forty-five 

(45) to one hundred and eight (108) months. Appellant’s Brief at 20-22. A 

challenge to the discretionary aspects of a sentence is not appealable as of 

right. Rather, Appellant must petition for allowance of appeal pursuant to 42 

Pa.C.S.A. § 9781. Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa. 

Super. 2004).

Before we reach the merits of this [issue], we must engage 

in a four part analysis to determine: (1) whether the appeal is 

timely; (2) whether Appellant preserved his issue; (3) whether 

Appellant's brief includes a concise statement of the reasons 

relied upon for allowance of appeal with respect to the 

discretionary aspects of sentence; and (4) whether the concise 

statement raises a substantial question that the sentence is 

appropriate under the sentencing code. The third and fourth of 

these requirements arise because Appellant's attack on his 

sentence is not an appeal as of right. Rather, he must petition 

this Court, in his concise statement of reasons, to grant 

consideration of his appeal on the grounds that there is a 

substantial question. Finally, if the appeal satisfies each of these 

four requirements, we will then proceed to decide the 

substantive merits of the case.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citations 

omitted).

Appellant has preserved his claim by filing a post-sentence motion and 

timely notice of appeal. Appellant has additionally included in his brief a 

concise statement pursuant to Pa.R.A.P. 2119(f). See Appellant’s Brief at 

14-16. Therefore, we proceed to determine whether Appellant has raised a 

substantial question for our review. 
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Appellant argues that a sentence of forty-five (45) to one hundred and 

eight 108 (108) months of imprisonment was inappropriate in light of 

Appellant’s age, community service, and efforts to rehabilitate himself. 

Appellant’s Brief at 16, 22. “[A]rguments that the sentencing court failed to 

consider the factors proffered in 42 Pa.C.S. § 9721 does present a 

substantial question, whereas a statement that the court failed to consider 

facts of record, though necessarily encompassing the factors of § 9721, has 

been rejected.” Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. 

Super. 2014) quoting Commonwealth v. Dodge, 77 A.3d 1263, 1272 n. 8 

(Pa. Super. 2013). Here, Appellant essentially asserts that the court failed 

to weigh appropriately the mitigating facts of record. Such a claim that the 

court failed to consider facts of record does not constitute a substantial 

question. Therefore, we deny Appellant’s sentencing claim.

For the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/11/2015