J-S16038-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CURTIS LEE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1149 EDA 2022

Appeal from the Judgment of Sentence Entered July 20, 2018

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0006869-2016

BEFORE: DUBOW, J., MURRAY, J., and McCAFFERY, J.

MEMORANDUM BY DUBOW, J.: FILED JULY 5, 2023

Appellant Curtis Lee appeals pro se from the Judgment of Sentence 

entered in the Philadelphia Court of Common Pleas following his conviction 

after a bench trial of Possession with Intent to Deliver (PWID), Knowingly or 

Intentionally Possessing a Controlled Substance by a Person Not Registered, 

and Conspiracy to PWID1in connection with his role as a look-out for 

individuals selling illicit drugs in Kensington. We affirm.

A.

We glean the following relevant facts and procedural history from the

certified record and the Pa.R.A.P. 1925(a) Opinion, authored by the Hon. Scott 

DiClaudio.

2

 On the evening of June 2, 2016, Philadelphia Police Officer Robert 

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1 35 P.S. §§780-113(A)(30) and (A)(16), 18 Pa.C.S. § 903(a)(1), respectively.

2 The Hon. Daniel McCaffery, who presided over Appellant’s waiver trial, has 

not participated in the consideration or disposition of this Appeal.
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Killman observed Appellant standing on the corner of Weymouth Street and 

Allegheny Avenue. Xavier Rosa and Julio Martinez were standing 

approximately 50 feet away selling illicit drugs. Officer Killman observed that 

when a marked police vehicle would come down Allegheny Avenue, Appellant 

would shout “Police on Allegheny Avenue.”

3

 When police vehicles left the area, 

Appellant would shout “Tambien” to signal that the area was “all clear.”4 

Officer Killman also observed Rosa and Martinez conduct hand-to-hand drug 

transactions with four different customers in which they handed Rosa or 

Martinez cash in exchange for small items. Following each transaction, police 

officers stopped the customers and recovered cocaine. After arresting the 

customers, police officers arrested Appellant, Martinez, and Rosa and

recovered heroin, crack, powdered cocaine, and cash from Martinez and 

Rosa’s pockets. Police Officer Donald Vandermay arrested Appellant and

recovered $98 from Appellant’s pocket. 

On June 8, 2017, after waiving his right to a jury,

5 Appellant proceeded 

to a bench trial at which Officer Killman testified. Appellant presented no 

evidence. The parties entered stipulations regarding the property and cash 

seized from the customers, Martinez, Rosa, and Appellant. The court found 

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3 Tr. Ct. Op., 8/15/22, at 2.

4

Id.

5 The trial court conducted a thorough jury waiver colloquy with Appellant, 

and Appellant acknowledged, among other things, that he was pleased with 

his counsel’s representation. See N.T. Trial, 6/8/17, at 4-8.
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Appellant guilty of the above offenses. The court ordered a pre-sentence 

investigation (“PSI”) and scheduled sentencing for September 8, 2017.6

On July 20, 2018, the court held a sentencing hearing at which, inter 

alia, Appellant’s attorney agreed that the Offense Gravity Score (“OGS”) was 

six. The court acknowledged the PSI, which included multiple prior felony 

convictions incurred prior to 1997, and sentenced Appellant to a standard 

range sentence of two to five years’ incarceration followed by five years’ 

probation. Appellant timely filed a post-sentence motion which the court 

denied.

Following various post-conviction proceedings, including the April 7, 

2022 reinstatement of his direct appeal rights nunc pro tunc, Appellant filed a 

timely notice of appeal. Both Appellant and the court compiled with Pa.R.A.P. 

1925. Appellant presents the following Statement of Questions Involved:

Did the trial court erred and/or abuse its discretion when it denied 

and dismissed all of appellant’s post-trial/post-sentence motions 

without a hearing or any opinions where Appellant suffered from

mental illness prior to a non-jury waiver trial and his counsel failed 

to alert the trial court of the seriousness documented diagnoses 

mental illness resulting in waiver of Appellant’s rights to not be 

trail while incompetent nor waive his rights knowingly, intelligent, 

and voluntary of jury trial and where the Commonwealth did not 

call any of its witness to preliminary hearing nor trial to be 

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6 On September 8, 2017, the court ordered a mental health evaluation for 

Appellant to determine competency, and deferred sentencing. On November 

17, 2017, the court found Appellant incompetent and, pursuant to Section 304 

of the Mental Health Procedures Act, committed Appellant for 30 days to the 

Detention Center Forensic Unit. The court twice re-committed Appellant to 

the Forensic Unit after holding additional hearings. Appellant’s trial counsel, 

Douglas Dolfman, Esq., withdrew his representation on April 20, 2018, and 

Rania Major, Esq., entered her appearance as new counsel on July 20, 2018.
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confronted or cross-examined about the evidence both witness

produced and where Appellant did not meet any element of the 

crime of (PWID) and where the Commonwealth produced known 

false evidence property receipt C-1 (money), property receipt C2 (drugs), and where the Commonwealth intentionally did not 

inform Appellant that there was a (bad cop) investigator who 

fabricated a false police report resulting in a Brady violation, all 

in order to cover up police brutality where the arresting officer 

Vandermay who beat and broke Appellant’s bones is totally 

missing from Appellant’s case and where Appellant’s attorney 

Douglas Dolfman knew the entire true story of Appellant being 

brutally beaten up, where attorney Dolfman filed in his Summary 

of Offense Complaint but secretly withholds the true story at trial 

intentionally misrepresenting and incriminating his own client at 

trial, and where no attorney would file any post-trial/postsentence motions demonstrating his own intentional 

misrepresentation leading to disbarment.

Appellant’s Br. at 4 (verbatim; emphasis in original).

B.

Similar to the lack of clarity presented in the above Statement of 

Question Involved, Appellant’s 56-page pro se brief is an amalgamation of 

numerous complaints and legal concepts, with most arguments difficult to 

discern and presented in a manner which does not comport with our briefing

rules.

7 While our review is significantly hampered, we are nonetheless able 

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7 For instance, the Statement of Questions Involved, quoted above, fails to 

“state concisely the issues to be resolved,” as required by Pa.R.A.P. 2116(a). 

In addition, Appellant fails to “set forth verbatim” the text of the order from 

which he seeks review as required by Rule 2115(a). The Summary of 

Argument is comprised primarily of complaints about trial counsel combined

with allegations of police misconduct. It does not comport with Rule 2118, 

which requires “a concise, but accurate, summary of the arguments presented 

in support of the issues in the statement of questions involved.” Pa.R.A.P 

2118. In addition, Appellant has included two sections under headings labeled 

“Argument.” 
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to discern Appellant’s challenges to the sufficiency and weight of the evidence

supporting his Conspiracy and PWID convictions8 and a claim that the court 

applied the wrong OGS.

A. Sufficiency of the Evidence

Appellant challenges the sufficiency of the evidence supporting his 

Conspiracy and PWID convictions when he asserts that he “never that day 

made any contact with any drug seller nor made any drug sales nor passed 

anything to anybody, [and] Appellant was never even seen talking to anybody 

that day.” Appellant’s Br. at 35. He also asserts that the Commonwealth “did 

not demonstrate no indica [sic], nor evidence, whatsoever that the Appellant 

spoke with, conspired with or knew any of the co-defendant[s], where 

Appellant was 60 yards away from the alleged co-defendant at a church food 

bank.” Id. at 38. Appellant’s arguments have no merit.

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8 Appellant’s first Argument section and much of his second argument section 

is comprised of various complaints about trial counsel. See Appellant’s Br. at 

12-35. Except under special circumstances not presented here, ineffective 

assistance of counsel claims may be raised only on collateral review with the 

filing of a petition pursuant to the Post Conviction Review Act, 42 Pa.C.S. §§ 

9542-46. Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013). We, 

thus, decline to address Appellant’s claims raised in this direct appeal that are 

based solely on his complaints about trial counsel’s stewardship.

In addition, although Appellant attempts to raise Brady and confrontation 

clause violations, as well as claims asserting prosecutorial and police 

misconduct, Appellant’s arguments are incomprehensible. As a result, we 

conclude his arguments are undeveloped and, therefore, waived. 

Commonwealth v. Charleston, 94 A.3d 1012, 1021 (Pa. Super. 2014) 

(concluding that undeveloped arguments are waived).
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“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 

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.

Conspiracy is defined in our Crimes Code as follows:

(a) Definition of conspiracy. - 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).
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“In order to prove the existence of a criminal conspiracy, the 

Commonwealth must demonstrate that the defendant: (1) entered 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. Chambers, 188 A.3d 400, 409–10 

(Pa. 2018) (citation omitted). “At the heart of every conspiracy lies the 

common understanding or agreement between the actors. Implicit in 

any conspiracy is proof that an accused agrees to participate in the alleged 

criminal activity.” Id. at 410 (citations, quotation marks, and ellipses 

omitted). Significantly, “[e]ven if the conspirator did not act as a principal in 

committing the underlying crime, he is still criminally liable for the actions of 

his co-conspirators in furtherance of the conspiracy.” Commonwealth v.

Johnson, 719 A.2d 778, 785 (Pa. Super. 1998) (en banc). 

To convict a person of PWID, the Commonwealth must prove beyond a 

reasonable doubt that the defendant possessed a controlled substance and 

did so with the intent to deliver it. 35 P.S. § 780-113(a)(30). “The intent to 

deliver may be inferred from an examination of the facts and circumstances 

surrounding the case. Factors to consider whether the defendant possessed 

the drugs with the intent to deliver include the particular method of packaging, 

the form of the drug, and the behavior of the defendant.” Commonwealth

v. Conaway, 791 A.2d 359, 362–63 (Pa. Super. 2002) (citations omitted).
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With respect to conspiracy to PWID, it is most often proven with 

circumstantial evidence. Commonwealth v. Spotz, 716 A.2d 580, 592 (Pa. 

1998). 

An explicit or formal agreement to commit crimes can seldom, if 

ever, be proved and it need not be, for proof of a criminal 

partnership is almost invariably extracted from the

circumstances that attend its activities. Indeed, 

a conspiracy may be proven inferentially by showing the relation, 

conduct, or circumstances of the parties, and the overt acts of 

alleged co-conspirators are competent as proof that a criminal 

confederation has in fact been formed.

Chambers, 188 A.3d at 410 (emphasis added) (citations and quotation marks 

omitted). 

The circumstances upon which the conspiracy may be proven include

“the relation between the parties, knowledge of and participation in the crime, 

and the circumstances and conduct of the parties surrounding the criminal 

episode.” Commonwealth v. Feliciano, 67 A.3d 19, 26 (Pa. Super. 2013)

(en banc) (citation omitted). See also Commonwealth v. Bricker, 882 A.2d 

1008, 1017-18 (Pa. Super. 2005) (affirming PWID conspiracy conviction 

where overt act was committed by co-conspirator and not the defendant); 

Commonwealth v. McCall, 911 A.2d 992, 997 (Pa. Super. 2006) (affirming 

PWID and conspiracy convictions where the appellant took “an active role in 

the illicit enterprise” by acting as a lookout even though he did not “physically 

handle the drugs transacted.”). 

In addressing Appellant’s sufficiency challenge, the trial court observed 

the following:
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At trial, Officer Killman testified that he witnessed [Appellant] 

yelling towards Martinez and Rosa “Tambien” to signal that the 

area was “all clear” or “Police on Allegheny Avenue” when a 

marked police vehicle would come down Allegheny Avenue. N.T. 

Trial at 13. Officer Killman also observed four different hand-tohand transactions between Rosa and/or Martinez and another 

person in which U.S. currency was exchanged for small items 

retrieved from Rosa and Martinez’s pants pockets. Id. at 13-16. 

All four buyers were stopped and arrested and from all were 

recovered either cocaine or heroin. Rosa and Martinez were also 

arrested. They had U.S. currency as well as cocaine and/or heroin 

on their person. 

To convict [Appellant] of conspiracy, the Commonwealth can show 

through reasonable inferences arising from the facts and 

circumstances that a tacit agreement exists between the coconspirat[ors]. Commonwealth v. Perez, 931 A.2d 703, 708 

(Pa. Super. 2007). Thus, while [Appellant] was not witnessed 

participating in the hand-to-hand transactions and no controlled 

substances were recovered from his person, his actions of 

informing Martinez and Rosa of the presence of marked police cars 

aided both in the commission of the crime. . . . Thus, the evidence 

is sufficient to uphold the conviction of Conspiracy PWID.

Trial Ct. Op., 8/15/22, at 11-12.

Our review of the record confirms that the Commonwealth presented 

sufficient evidence to support Appellant’s convictions. Appellant stipulated 

that the drugs the police officers seized from Martinez and Rosa and their 

customers were cocaine and heroin. N.T., at 21-25. In addition, Officer 

Killman testified to his surveillance of Appellant, Martinez, and Rosa, and the 

circumstances leading up to the arrest of all three. With respect to Appellant’s 

participation as a look-out, Officer Killman’s testimony established that 

Appellant very clearly shouted either “Police on Allegheny” or “Tambien,” 

meaning “all clear,” to apprise Martinez and Rosa of police activity in the area. 

In light of the above evidence, it was reasonable for the fact-finder to infer 
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that Appellant acted as part of the drug-selling criminal enterprise. Thus, in 

light of our standard of review, we conclude the Commonwealth presented 

sufficient evidence to support Appellant’s convictions. 

B. Weight of the Evidence

Appellant also purports to challenge the weight of the evidence 

supporting his convictions by asserting that Officer Killman presented “false 

evidence and false charges.” Appellant’s Br. at 40.9 No relief is warranted.

When considering challenges to the weight of the evidence, we apply 

the following precepts. “The weight of the evidence is exclusively for the 

finder of fact, who is free to believe all, none[,] or some of the evidence and 

to determine the credibility of the witnesses.” Commonwealth v. Talbert, 

129 A.3d 536, 545 (Pa. Super. 2015) (citation omitted). Resolving 

contradictory testimony and questions of credibility are matters for the finder 

of fact. Commonwealth v. Hopkins, 747 A.2d 910, 917 (Pa. Super. 2000). 

It is well-settled that we cannot substitute our judgment for that of the trier 

of fact. Talbert, 129 A.3d at 546. 

Moreover, appellate review of a weight claim is a review of the trial 

court’s exercise of discretion in denying the weight challenge raised in the 

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9 Appellant also alleges that Officer Killman’s testimony was “hearsay.” 

Appellant’s Br. at 42. Appellant does not indicate where in the record he 

asserted a hearsay objection at his trial. Accordingly, it is waived. Pa.R.A.P. 

302(a) (issues not raised before the trial court are waived). See also

Commonwealth v. Parker, 104 A.3d 17, 29 (Pa. Super. 2014) (observing 

that specific objection to testimony as hearsay is waived on appeal if not 

preserved at trial).
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post-sentence motion; this Court does not review the underlying question of 

whether the verdict is against the weight of the evidence. See id. at 545-46. 

“One of the least assailable reasons for granting or denying a new trial is the 

lower court’s conviction that the verdict was or was not against the weight of 

the evidence and that a new trial should be granted in the interest of justice.” 

Id. at 546 (citation omitted).

Furthermore, “[i]n order for a defendant to prevail on a challenge to the 

weight of the evidence, the evidence must be so tenuous, vague and uncertain 

that the verdict shocks the conscience of the court.” Id. (citation omitted). 

As our Supreme Court has made clear, reversal is only appropriate “where the 

facts and inferences disclose a palpable abuse of discretion[.]” 

Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (citations and 

emphasis omitted).

Here, after reviewing the evidence and stipulations that were presented 

at trial, the trial court concluded that the verdict did “not shock the 

conscience.” Trial Ct. Op., at 14. Notably, the court observed “[n]o evidence 

was presented to show that Officer Killman was not credible.” Id. at 15. 

Our review confirms that the trial court did not abuse its discretion in 

denying Appellant’s post-sentence motion. Appellant essentially asks this 

Court to reweigh the evidence and find Officer Killman’s testimony not 

credible. Our standard of review does not allow us to do so. Moreover, like 

the trial court, our conscience is not shocked by the verdict. Accordingly,

Appellant is entitled to no relief on his weight challenge.
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C. OGS

Appellant asserts that the trial court erred in applying an OGS of 6 

instead of 3 and as a result imposed an excessive sentence. Appellant’s Br. 

at 51-52. Without acknowledging that his counsel agreed that the proper OGS 

was 6, Appellant asserts that the Commonwealth misinformed the court that 

the OGS was 6 and claims, among other things, that the probation department 

had indicated the OGS was 3. Id. 

“A claim that the sentencing court used an incorrect OGS is a challenge 

to the discretionary aspects of one’s sentence.” Commonwealth v. 

Williams, 151 A.3d 621, 625 (Pa. Super. 2016) (citation omitted). An 

appellant raising such a challenge is not entitled to review as of right; rather, 

a challenge in this regard is properly viewed as a petition for allowance of 

appeal. 42 Pa.C.S. § 9781(b); Commonwealth v. Tuladziecki, 522 A.2d 

17, 18-19 (Pa. 1987); Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 

(Pa. Super. 2014).

In order to obtain this Court’s review, an appellant challenging the 

discretionary aspects of his sentence must comply with the following 

requirements: (1) file a timely notice of appeal; (2) preserve the issue at 

sentencing or in a motion to reconsider and modify sentence; (3) include 

within his brief a concise statement of the reasons relied upon for allowance 

of appeal as required by Pa.R.A.P. 2119(f); and (4) raise a substantial 

question that the sentence is inappropriate under the Sentencing Code. 

Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa. Super. 2013). 
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Here, Appellant timely appealed and preserved his challenge in a postsentence motion to modify sentence. Appellant has not included a Pa.R.A.P. 

2119(f) Statement in his brief, however, the Commonwealth has not objected

so we proceed to determine whether Appellant has raised a substantial 

question.

10

 

Appellant’s allegation that the sentencing court applied an incorrect OGS 

resulting in an excessive sentence raises a substantial question. 

Commonwealth v. Archer, 722 A.2d 203, 210-11 (Pa. Super. 1998) (en 

banc). Nevertheless, we conclude Appellant has waived his claim for the 

following reasons. 

First, Appellant has not supported his assertion that the Commonwealth 

provided misinformation to the court. See Pa.R.A.P. 2119(c) (requiring 

reference to the record).11 More importantly, Appellant has not informed this 

Court how the trial court erred in rendering its calculation of an OGS of six. 

Rather, he baldly asserts that the sentencing court “never even reviewed the 

[post-sentence] motion” and, thus, abused its discretion. Appellant’s Br. at 

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10 See Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004) 

(noting that “when the appellant has not included a Rule 2119(f) statement

and the appellee has not objected, this Court may ignore the omission and 

determine if there is a substantial question that the sentence imposed was not 

appropriate, or enforce the requirements of Pa.R.A.P. 2119(f) sua sponte, i.e.,

deny allowance of appeal.”) (citation omitted).

11 Although Appellant refers to a copy of a cover sheet purporting to be from 

the probation department, that document is largely illegible, and we are 

unable to discern any reference to an OGS.
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51. Because Appellant has not presented a developed argument directing our 

attention to an error in the trial court’s analysis, and this Court may not 

develop an argument for Appellant, we conclude he has waived his 

challenge.12 See Commonwealth v. Freeman, 128 A.3d 1231, 1249 (Pa. 

Super. 2015) (observing that “[w]hile this Court may overlook minor defects 

or omissions in an appellant's brief, we will not act as his or her appellate 

counsel.”) (citation omitted).

In conclusion, applying our standard of review, we conclude the factfinder’s verdicts are supported by sufficient evidence and we discern no abuse 

of the trial court’s discretion in denying Appellant’s post-trial motion. Further, 

Appellant’s challenge to the discretionary aspects of his sentence is waived for 

failing to provide a developed argument regarding trial court error. 

Accordingly, we affirm Appellant’s Judgment of Sentence.

Judgment of Sentence affirmed.

Judge Murray joins the memorandum. 

Judge McCaffery did not participate in the decision. 

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12 The trial court also addressed Appellant’s claim that his sentence exceeded 

the sentencing guidelines and concluded that the sentence of two to five years 

did not exceed sentencing guidelines. Tr. Ct. Op., at 21. The trial court 

observed that ”the standard guidelines for a PRS of RFEL and OGS of six is 

twenty-seven (27) months to forty (40) months[,]” which is “two years and 

three months to three years and four months plus or minus six months.” Tr. 

Ct. Op., at 21 and n. 6. Appellant has not addressed the trial court’s finding 

except to say that under an OGS of 3, he would have been sentenced to just 

twelve to 12 to 18 months’ minimum incarceration. Appellant’s Br. at 52. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/5/2023