J-S54045-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANTHONY BRANCHE, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1726 MDA 2018

Appeal from the Judgment of Sentence Entered June 28, 2018

In the Court of Common Pleas of York County Criminal Division at No(s): 

CP-67-CR-0003162-2016

BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.: FILED: DECEMBER 26, 2019

Appellant, Anthony Branche, Jr., appeals from the June 28, 2018 

Judgment of Sentence entered in the York County Court of Common Pleas 

following his jury conviction of Delivery (heroin) and Criminal Conspiracy to 

Deliver Heroin.

1 Appellant challenges the sufficiency and weight of the 

evidence and the discretionary aspects of his sentence. After careful review, 

we affirm.

We summarize the facts, as gleaned from the Notes of Testimony and 

the trial court’s May 15, 2019 Opinion as follows. On April 12, 2016, 

Pennsylvania State Police Troopers Shawn Wolfe and Justin Dembrowski set 

up a controlled drug buy between a confidential informant (“CI”) and 

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1 35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 903.
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Appellant, who went by the nickname “Ant Mo.”2 The CI, in the presence of 

Trooper Wolfe, called Appellant and arranged to buy heroin in exchange for 

$300, which Trooper Wolfe provided from official funds and Trooper 

Dembrowski had photocopied. The CI and Appellant agreed to meet at the 

Sheetz gas station at the intersection of I-83 and Route 30 in York County. 

When Appellant arrived at Sheetz, the CI entered his vehicle3 and sat 

on the rear passenger side. Appellant was seated in the driver’s seat, and an 

unknown individual, later identified as Appellant’s brother’s wife’s sixteen year 

old nephew (“Nephew”) was seated in the front passenger seat. The CI gave 

Appellant the $300 in official funds, and received the heroin, which had been 

located in the front right passenger side air vent, in exchange.4 Following the 

transaction, the CI gave the drugs, consisting of 1.22 grams of heroin, to the 

police.

Pennsylvania State Police troopers stopped Appellant’s vehicle 16 miles 

after he left the Sheetz parking lot. Appellant gave the troopers permission 

to search his vehicle. The troopers discovered that the front right passenger 

air vent—an area closer to Appellant’s front seat passenger than to Appellant—

had been modified to act as a storage compartment. Upon searching 

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2 Appellant had “Ant Mo” tattooed on his arm, and the CI identified him in 

court as “Ant Mo.”

3 Appellant did not own the vehicle but had borrowed it from his brother’s wife.

4 The CI testified at trial that, owing to the passage of time, he could not 

remember whether Appellant or the front-seat passenger had handed him the 

drugs or to which of those men he had paid for the drugs. 
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Appellant, the troopers located the $300 in official funds the CI had paid for 

the heroin. The troopers observed that Appellant had “Ant Mo” tattooed on 

his right forearm. The troopers also found two cell phones on Appellant, the 

phone number of one of which matched the number the CI had called to set 

up the heroin buy. 

Police arrested Appellant, and the Commonwealth charged him with the 

above crimes. 

At Appellant’s jury trial, the Commonwealth presented the testimony of 

the CI, and Troopers Wolfe and Dembrowski. Appellant testified on his own 

behalf. Appellant claimed that Nephew had orchestrated the drug transaction 

without Appellant’s knowledge. Relevantly, he testified that he went to Sheetz 

to buy a phone charger. He testified that, when he arrived at Sheetz, but 

before he exited his car, the CI approached the car. He then testified that the 

CI entered the back seat of his car and engaged in a drug transaction with 

Nephew. He denied that any of the money police found when they searched 

him was the $300 in official funds and denied ever hearing or going by the 

name “Ant Mo.”5 Appellant gave conflicting accounts of his plans for the day, 

explaining first that drove to York from Baltimore intending to pick up his wife 

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5 Appellant later stipulated that he has a tattoo on his arm that says “Ant Mo” 

and admitted on cross-examination that he went by that nickname.
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in Harrisburg and then later claiming that he was going to meet his wife in 

Shrewsbury.6 

The jury convicted Appellant of the above charges and, following its 

consideration of a Pre-Sentence Investigation Report, the court sentenced 

Appellant to an aggregate term of eleven to twenty-two years’ incarceration, 

consisting of two consecutive five and a half to eleven-year terms. 

On July 9, 2018, Appellant filed a Post-Sentence Motion, in which he 

challenged the sufficiency and weight of the evidence. Appellant also 

requested that the court reconsider and modify his aggravated range 

sentences, asserting that they were unreasonable and manifestly excessive

because he “had only [a] prior conviction for a felony drug offense . . . and no 

prior adult felony convictions at all,” and asserting that the court abused its 

discretion in imposing the sentences consecutively. Motion, 7/9/18, at ¶ 18, 

27, 29. The trial court held a hearing on the Motion after which, on September 

14, 2018, it denied Appellant relief.

This timely appeal followed. Both Appellant and the trial court complied 

with Pa.R.A.P. 1925.

Appellant raises the following three issues on appeal:

1. Whether there was sufficient evidence presented by the 

Commonwealth in order to support the verdicts of guilty for 

Delivery and Criminal Conspiracy?

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6 The trial court observed in its Rule 1925(a) Opinion that Harrisburg and 

Shrewsbury are in opposite directions on I-83 from the drug buy in York. 

Opinion, 5/15/19, at 5 n.1.
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2. Whether the jury’s verdict was so against the weight of the 

evidence as to shock one’s sense of justice?

3. Whether the trial court abused its discretion and sentenced 

[Appellant] to an unreasonable sentence when it sentenced 

[Appellant] above the aggravated range on both charges, 

consecutive[ly]?

Appellant’s Brief at 6.

In his first issue, Appellant claims that the Commonwealth’s evidence 

was insufficient to support his convictions of Delivery and Criminal Conspiracy. 

Appellant’s Brief at 12-14. In particular, with respect to his Delivery 

conviction, Appellant argues that the Commonwealth failed to prove that he 

delivered the heroin to the CI, or that he was aware of the drug deal prior to 

it taking place. Id. at 12. Appellant argues that his Criminal Conspiracy 

conviction was unsupported by the evidence because the Commonwealth 

failed to show that he had entered into any agreement to deliver heroin with 

Nephew, that he had been aware of the drug deal prior to it occurring, or that 

he profited from it. Id. at 12-13.

“A claim challenging the sufficiency of the evidence is a question of law.” 

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “We review 

claims regarding the sufficiency of the evidence by considering whether, 

viewing all the evidence admitted at trial in the light most favorable to the 

verdict winner, there is sufficient evidence to enable the fact-finder to find 

every element of the crime beyond a reasonable doubt.” Commonwealth v. 

Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (internal quotation marks and 

citations omitted). “Further, a conviction may be sustained wholly on 
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circumstantial evidence, and the trier of fact—while passing on the credibility 

of the witnesses and the weight of the evidence—is free to believe all, part, or 

none of the evidence.” Id. “In conducting this review, the appellate court 

may not weigh the evidence and substitute its judgment for the fact-finder.” 

Id.

A person is guilty of Delivery if he, inter alia, delivers a controlled 

substance to another person. 35 P.S. § 780-113(a)(30).

“A person is guilty of conspiracy with another person or persons to 

commit a crime if[,] with the intent of promoting or facilitating its 

commission[,] he: (1) agrees with such other person or persons that they or 

one or more of them will engage in conduct which constitutes such crime or 

an attempt or solicitation to commit such crime; or (2) agrees to aid such 

other person or persons in the planning or commission of such crime or of an 

attempt or solicitation to commit such crime.” 18 Pa.C.S. § 903(a). 

In order to convict a defendant of Criminal Conspiracy, the 

Commonwealth must prove that the defendant “1) entered into an agreement 

to commit or aid in an unlawful act with another person or persons; 2) with a 

shared criminal intent; and 3) an overt act was done in furtherance of the 

conspiracy.” Commonwealth v. Feliciano, 67 A.3d 19, 25-26 (Pa. Super. 

2013) (citation omitted). The conspiratorial agreement “can be inferred from

a variety of circumstances including, but not limited to, the relation between 

the parties, knowledge of and participation in the crime, and the 
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circumstances and conduct of the parties surrounding the criminal episode.”

Commonwealth v. Devine, 26 A.3d 1139, 1147 (Pa. Super. 2011). 

Instantly, the evidence, when viewed in the light most favorable to the 

Commonwealth as verdict-winner, indicated that the CI ordered heroin from 

Appellant by placing a call to a phone later found on Appellant’s person. The 

CI met Appellant at the agreed-upon transaction location and the CI entered 

Appellant’s car. Inside the car, the CI engaged in physical interactions with 

both Appellant and Nephew, obtained the heroin, and paid for it with the 

official funds provided by the troopers. When the troopers subsequently 

arrested Appellant, he was in possession of cash, including the official funds, 

and a cell phone whose number matched the one used by the CI to order the 

drugs. Appellant acknowledged being in the vehicle during the transaction. 

Appellant gave conflicting versions of why he was in York and lied about using 

the nickname “Ant Mo” despite having a tattoo of that name on his forearm. 

In light of this evidence, the jurors could reasonably conclude that Appellant 

delivered heroin to the CI.

With respect to Appellant’s Criminal Conspiracy conviction, the 

Commonwealth presented evidence that the CI initiated the drug buy by 

calling Appellant, known as “Ant Mo.” Appellant and Nephew arrived in the 

same vehicle, driven by Appellant, at the agreed-upon transaction site. Then, 

upon entering Appellant’s car, the troopers observed the CI engaging in 

physical interactions with both Appellant and Nephew then retrieved the 

heroin from the storage compartment located in the modified air vent and
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gave the drugs to the CI. Later, police found the official funds they had given 

to the CI on Appellant’s person. In light of these facts, we conclude that it 

was reasonable for the jury to find the existence of a criminal agreement

between Appellant and Nephew to deliver heroin to the CI.

Following our review of the record, including the Notes of Testimony of 

Appellant’s May 15, 2018 trial, we conclude that the Commonwealth presented 

sufficient direct and circumstantial evidence to enable to the jury to find every 

element of the offenses of Delivery and Criminal Conspiracy beyond a 

reasonable doubt. Appellant is, therefore, not entitled to relief on this claim.

In his second issue, Appellant purports to challenge the weight given by

the jury to the Commonwealth’s evidence. Appellant’s Brief at 14. Appellant’s 

argument consists only of the following statements: “While the standard for 

weight of the evidence is different from sufficiency, the argument is exactly 

the same. Therefore, since the argument is outlined in the section above it 

will not be reiterated for a second time here.” Id.

Our Supreme Court has held that “incorporation by reference” is an 

unacceptable manner of appellate advocacy for the proper presentation of a 

claim for relief to the Court. Commonwealth v. Briggs, 12 A.3d 291, 342-

43 (Pa. 2011)) (specifying that “our appellate rules do not allow incorporation 

by reference of arguments contained in briefs filed with other tribunals, or 

briefs attached as appendices, as a substitute for the proper presentation of 

arguments in the body of the appellate brief”); Pines v. Farrell, 848 A.2d 94, 

97 n.3 (Pa. 2004) (reliance on “briefs and pleadings already filed in this case” 
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was “not a recommended form of advocacy”). The Rules of Appellate 

Procedure specifically require a party to set forth in his or her brief, in relation 

to the points of his argument or arguments, “discussion and citation of 

authorities as are deemed pertinent,” as well as citations to statutes and 

opinions of appellate courts and “the principle for which they are cited.” 

Pa.R.A.P. 2119(a), (b). Therefore, our appellate rules do not allow 

incorporation by reference of arguments as a substitute for the proper 

presentation of arguments in the body of the appellate brief. Appellant has, 

thus, waived this claim.

In his final issue, Appellant claims the trial court abused its discretion 

when it sentenced him to two consecutive aggravated range sentences. 

Appellant concedes that the court placed numerous reasons on the record 

explaining why it was imposing the sentences it imposed. Nevertheless, 

Appellant argues that, “[n]one of those reasons, even when taken together, 

are sufficient to support” his sentence. Appellant’s Brief at 16-17. He also 

baldly claims that, “the sheer level of departure from the sentencing guidelines 

is manifestly unjust and show[s] a clear abuse of discretion.” Id. at 17. 

Challenges to the discretionary aspects of sentencing are not 

automatically reviewable as a matter of right. Commonwealth v. Hunter, 

768 A.2d 1136, 1144 (Pa. Super. 2001). Prior to reaching the merits of a 

discretionary sentencing issue, we must determine: (1) whether appellant has 

filed a timely notice of appeal; (2) whether the issue was properly preserved 

at sentencing or in a motion to reconsider and modify sentence; (3) whether 
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appellant’s brief sufficiently addresses the challenge in a statement included 

pursuant to Pa.R.A.P. 2119(f); and (4) whether there is a substantial question 

that the sentence appealed from is not appropriate under the Sentencing 

Code. Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006).

With respect to the second factor, a defendant must object and request 

a remedy at sentencing, or raise the challenge in a post-sentence motion. 

Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa. Super. 2004). The 

Pennsylvania Rules of Criminal Procedure specifically caution defendants that, 

when filing Post-Sentence Motions, “[a]ll requests for relief from the trial court 

shall be stated with specificity and particularity[.]” Pa.R.Crim.P. 720(B)(1)(a). 

See Commonwealth v. Tejada, 107 A.3d 788, 798-99 (Pa. Super. 2015) 

(noting that the trial court must be given the opportunity to reconsider its 

sentence either at sentencing or in a post-sentence motion). See, e.g., 

Commonwealth v. Mann, 820 A.2d 788, 793-94 (Pa. Super. 2003) (holding 

that defendant waived discretionary aspects of sentencing claim regarding 

sentencing court’s failure to state the reasons for his sentence on the record 

where defendant filed a post-sentence motion, but only argued that his 

sentence was unduly severe and the trial court abused its discretion under the 

sentencing code).

Appellant did not preserve his issues he raises on appeal on the record 

at sentencing. Appellant also did not preserve these issues in his PostSentence Motion. As noted above, in his Post-Sentence Motion, Appellant 

asserted only that the court abused its discretion in imposing sentences that 
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are “unreasonable and manifestly excessive” because he “had only [a] prior 

conviction for a felony drug offense . . . and no prior adult felony convictions 

at all.” Motion, 7/9/18, at ¶ 18, 27. Appellant also challenged the imposition 

of consecutive sentences. Id. at ¶ 29. Appellant has not raised either of 

these arguments in his appellate brief, but, instead, asserts two different 

bases for objection. Because Appellant failed to preserve the issues he raises 

on appeal at sentencing or in his Post-Sentence Motion, he has waived his 

challenges to the discretionary aspects of his sentence.7

Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/26/2019

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7

In his Rule 1925(b) Statement Appellant raised yet a different ground in 

support of his claim that the court had abused its discretion when sentencing 

him. There, Appellant claimed that the court abused its discretion—with 

respect to his Delivery conviction only—because it failed to place sufficient 

reasons explaining the sentence on the record. Rule 1925(b) Statement, 

9/7/18, at 1 (unpaginated).