J-S64024-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. ALLEN JEROME WILLIAMS, Appellant No. 487 WDA 2014 Appeal from the Judgment of Sentence Entered March 10, 2014 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0001648-2013

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J. MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 15, 2014 Appellant, Allen Jerome Williams, appeals from the judgment of sentence of 30 to 84 months’ imprisonment. Appella nt challenges the sufficiency of the evidence introduced at his trial , and the trial court’s failure to grant a mistrial following the admission of a ph otograph into evidence. After careful review, we affirm. Appellant proceeded to a jury trial on March 3, 20 14. The facts adduced at trial were as follows: On May 11th of 2011, Detective Donald Cross along w ith a confidential informant ... (Informant), travelled to 41 Cycle Street in Uniontown. Upon arrival, Detective Cross obtained the registration from a Honda Civic parked outside. Up on entering the residence, Detective Cross and the Informant we re greeted by a man Detective Cross identified as [Appellant]. Detective Cross and the Informant indicated to [Appellant] a desire to purchase heroin and [Appellant] instructed the two to go to the Rite Aid parking lot.J-S64024-14

- 2 - While waiting in the Rite Aid parking lot, the Info rmant received a call. At the conclusion of the call, th e Informant drove the car to the parking lot of the Atlantic Br oadband building on Bailey Avenue. Detective Cross noticed the same Honda Civic parked in the lot and instructed the In formant to park to the right of the Honda. Detective Cross ha nded $350 to the Informant, who then exited the vehicle and walk ed into the lot. Detective Cross testified that [Appellant] ex ited the building and met with the Informant 10 feet from the vehicle in which the detective was sitting. Detective Cross testified t hat, while outside the building, he observed the 

### Informant hand the money to [Appellant] 

### , and [Appellant] 

### hand the Informant a plastic bag containing 50 rolled items. At trial, parties stipulated that the package did c ontain heroin, a Schedule 1 controlled substance. Detecti ve Cross stated that he had an unobstructed view of the tran saction and the package had remained in his sight from the time of the transaction to the time he received the package from the Informant. The Informant and his vehicle were sear ched before and after the operation for drugs, money, or other contraband; both searches determined that there wer e no such items present. Trial Court Opinion (TCO), 6/27/14, at 2 – 3 (citat ions to the record omitted). At the conclusion of Appellant’s trial, the jury found him guilty of delivery of heroin. On March 10, 2014, Appellant w as sentenced to 30 to 84 months’ imprisonment. He filed a timely notice of appeal, as well as a timely concise statement of errors complained of on appeal pursuant to Pa.R.A.P 1925(b). Appellant now presents the following questions for our review:
1. Did the Commonwealth fail to provide sufficient ev idence on the charges of delivery, intent to deliver and p ossessionJ-S64024-14

- 3 - of a controlled substance, [1] that the officer would not have been able to observe Appellant deliver the drugs in side of the building?
2. Did the trial court err when it permitted the intro duction of evidence, i.e. , a JNET photograph, that had never been provided to defense counsel during discovery? Appellant’s brief at 7 (unnecessary capitalization omitted). Appellant first argues that the evidence was insuf ficient to establish that he delivered the heroin in question. Our stan dard of review of such claims is well-settled: A claim challenging the sufficiency of the evidence is a question of law. Evidence will be deemed sufficient to supp ort the verdict when it establishes each material element of the cr ime charged and the commission thereof by the accused, beyond a reasonable doubt . . . . When reviewing the suffici ency claim the court is required to view the evidence in the light most favorable to the verdict winner giving the prosecution the be nefit of all reasonable inferences to be drawn from the evidence

. Commonwealth v. Widmer , 744 A.2d 745, 751 (Pa. 2000) (citations omitted). Appellant was convicted of delivery of heroin, def ined at 35 Pa. C. S. § 780-113(a)(30): (a) The following acts and the causing thereof within t he Commonwealth are hereby prohibited.

...

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1 For the sake of clarity, we note that Appellant wa s charged with, and convicted of, one count; that count was delivery of heroin. Appellant’s apparent references here to convictions for possess ion and possession with intent to deliver appear to be in error.J-S64024-14

- 4 - (30) Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance. Here, Detective Cross testified that he watched a confidential informant give $350 to Appellant. Detective Cross then watched as Appellant handed the confidential informant a plast ic bag containing rolled items. At trial, Appellant stipulated that the bag contained heroin. As such, the evidence was sufficient to establish that Appel lant delivered heroin. 2

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2 Appellant’s briefed argument regarding this issue ends abruptly after the first page; as such, his precise challenge to the s ufficiency of the evidence is unclear. We note, however, that Appellant claims: “any conta ct between [Appellant] and the confidential informant occurred that day inside the building.” Appellant’s brief at 9. Moreover, Appe llant asserts that “the officer would not have been able to observe the App ellant deliver the drugs inside of the building.” Appellant’s brief at 7. As noted supra , Detective Cross’s uncontroverted testimony at trial was that he watched the transaction occur, and it occurred outside the buil ding. There is nothing in the record to suggest that the transaction occurred outside of the detective’s observation. Appellant did not include citations to authority in his brief’s “Scope and Standard of Review.” We will reiterate that our sc ope of review of sufficiency claims on direct appeal is limited to t he record before us, and all reasonable inferences therefrom, taken in the light most favorable to the Commonwealth. Widmer , 744 A.2d at 751. To the extent that Appellant challenges the credibi lity of the detective’s testimony, this would constitute a chal lenge to the weight of the (Footnote Continued Next Page)J-S64024-14

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Next, Appellant claims that the trial court erred i n permitting the Commonwealth to introduce a photograph of Appellant into evidence, because that photograph had not been turned over to Appellant in discovery. Appellant relies on Pa. R. Crim. P. 573(B), which s tates in applicable part: (1) In all court cases, on request by the defendant ... t he

Commonwealth shall disclose to the defendant's atto rney all of the following requested items or information , provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant's attorney to inspect and copy or photogr aph such items.

... (f) [A]ny tangible objects, including ... photographs [.] As noted by counsel for the Commonwealth at trial, [o]n page 3 of the police report, at paragraph numb er 11, there is an indication that the detective previously view ed [Appellant’s] identity from the JNET photo history. So this issu e of JNET was not hidden in any way, it was contained in the poli ce report and the police report was part of the discovery.

(Footnote Continued) _______________________ evidence. See Commonwealth v. Wilson , 825 A.2d 710, 713-714 (Pa. Super. 2003) (“ A sufficiency of the evidence review ... does not inc lude an assessment of the credibility of the testimony offe red by the Commonwealth. Such a claim is more properly characterized as a we ight of the evidence challenge.”) (internal citations omitted). Appella nt has not preserved a challenge to the weight of the evidence; as such, w e will not address it on appeal. See Pa. R. Crim. P. 607(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”).J-S64024-14

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N.T., 3/3/14, at 35. Moreover, counsel for the Com monwealth argued that the defense would have been able to inspect and cop y that picture, had they arranged to do so. Id. at 35 – 36. Appellant’s counsel did not claim tha t he ever tried to make such arrangements; rather, his s ole argument was that the photograph was not provided in the discovery pa cket the Commonwealth had provided him. Id. at 36. Our review of the record shows that the Commonweal th disclosed the existence of the JNET photograph to Appellant. Mor eover, Appellant concedes he did not attempt to inspect the photogra ph. Appellant argues: The failure to provide the JNET photograph to couns el for the defense [ sic ] stated that the admission of the undisclosed phot o would negatively impact his trial strategy. Timely disclosure of the photo would have changed the strategy of counse l. Counsel stated that "I would, therefore, ask him about it a nd it goes basically to his word as opposed to having some phy sical evidence that he viewed a document, an official doc ument, with Mr. Williams[’] name on it, and it changed the whol e strategy of the case since it was not provided to me. Because then I can argue, if that is a correct identification, why did n't he bring, why wasn't the JNET photo provided to me...." (N.T. pg . 36). Appellant’s brief at 12 – 13. It appears that the fact that the photograph was not included in the discovery packet led the de fense to incorrectly assume the photograph did not exist. Rather than i nvestigate the whereabouts of photograph, Appellant’s counsel deci ded to impeach Detective Cross on the basis of this incorrect assu mption. This strategy was thwarted when the Commonwealth introduced the photo graph into evidence at trial.J-S64024-14

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Accordingly, Appellant did not establish that Pa. R . Crim. P. 573 was violated, and we conclude the trial court did not e rr in denying Appellant’s motion for a mistrial on this basis. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/15/2014