J-S72042-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

STEVEN WARREN TAYLOR, 

Appellant.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 796 MDA 2018

Appeal from the Judgment of Sentence, April 10, 2018,

in the Court of Common Pleas of Dauphin County,

Criminal Division at No(s): CP-22-CR-0002021-2016.

BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.: FILED FEBRUARY 14, 2019

Steven Taylor appeals from the judgment of sentence imposed after jury 

convicted him of the attempted delivery of a controlled substance and criminal 

use of a communication facility.1 Although we affirm Taylor’s convictions, we 

vacate his sentence and remand with instructions.

The trial court summarized the pertinent facts and procedural history as 

follows:

The testimony at trial revealed that on March 7, 2016, 

Detective Nicholas Licata, a 10-year veteran with the 

Harrisburg City Police Department, arranged for a 

confidential informant (“CI”) to buy drugs from [Taylor]. 

Detective Licata met with the CI and arranged for the CI to 

call a drug dealer in order to arrange a drug buy of two 

bundles worth $130. The drug dealer had the CI meet him 

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1 18 Pa.C.S.A §§ 901 and 780-113(a)(30), and 18 Pa.C.S.A. § 7512(a), 

respectively.
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at 13th and Vernon in Harrisburg, PA. [Detective Licata was 

able to listen to the phone conversation between the CI and 

the drug dealer and wrote down the number that was 

called.] The CI was searched, given money to purchase the 

drugs, and driven to the meeting location by Detective 

Licata. [Detective Licata took a photograph of the marked 

money prior to handing it to the CI. The Commonwealth 

introduced as Commonwealth’s Exhibit 1 photographs of the 

money.] When Detective Licata and the CI arrived at the 

meeting location, Detective Licata watched the CI dial the 

same number that was used to set up the drug buy. An 

individual wearing a red t-shirt and blue jeans answered the 

call and indicated that he was at the location.

At this time, the CI walked to meet the male in the red 

shirt. After a few minutes, they walked back towards where 

Detective Licata was parked and walked out of his view. 

Roughly two to five minutes later, the CI and [Taylor] 

[walked] back to Detective Licata’s view. However, at this 

time, surveillance had been blown/compromised and 

[Taylor] was arrested for attempt to deliver a controlled 

substance. [The CI was also arrested at this time.] Both 

the CI and [Taylor] were searched. There was nothing 

found on the CI. [Taylor] had on his person a cell phone, 

pocket knife, and $53. Some of the bills had the same serial 

numbers as previously photographed by Detective Licata. 

On cross-examination, Detective Licata indicated that no 

drugs or drug paraphernalia was found on [Taylor] when 

arrested.

The Commonwealth also introduced the testimony of 

Donald Heffner (“Heffner”), employed by the Pennsylvania 

Office of the Attorney General in the Bureau of Narcotics 

Investigation. At the time of the incident, Heffner was 

employed in the vice unit with the Harrisburg City Police 

Department. Heffner was part of the surveillance team on 

March 7, 2016 and testified to the events that occurred that 

day. Through Heffner, the Commonwealth introduced a 

[seven-second] video of the CI and [Taylor]. Much of the 

testimony provided by Heffner was the same testimony 

presented by Detective Licata. . . . On cross-examination, 

Heffner indicated that [Taylor] was a known drug addict.
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Trial Court Opinion, 6/25/18, at 2-4 (citations and footnotes omitted). 

Additionally, we note that once both men were arrested, Detective Licata 

dialed the same number used by the CI to set up the drug deal and Taylor’s 

cell phone began ringing. See N.T., 3/13/18, at 90-91.

At the conclusion of a two-day jury trial, Taylor was convicted of the 

aforementioned charges. Thereafter, the trial court sentenced him to an 

aggregate term of two to four years of imprisonment. This timely appeal 

follows the trial court’s denial of Taylor’s post-sentence motion. Both Taylor 

and the trial court have complied with Pa.R.A.P. 1925.

Within his brief, Taylor raises the following issues:

I. Whether the trial court erred when it denied Taylor’s 

post-sentence motion because the verdict was so 

contrary to the weight of the evidence as to shock 

one’s sense of justice?

II. Did the trial court err in refusing to make Taylor 

eligible for RRRI when he was an eligible offender 

under 61 Pa.C.S.A. § 4503, and the court was 

required by 61 Pa.C.S.A. § 4505 and 42 Pa.C.S.A. § 

9756 to impose a RRRI minimum sentence in addition 

to the minimum and maximum sentence?

See Taylor’s Brief at 6.2

Although Taylor has phrased his first issue in terms of the weight of the 

evidence, in support he asserts that “the evidence failed to show that [he]

took a substantial step toward the commission of a delivery of a controlled 

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2 The Commonwealth did not file a brief.
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substance,” and that the evidence “failed to show that [he] used a 

communication facility in order to commit, cause or facilitate the commission 

of a crime which constitutes a felony.” Taylor’s Brief at 10. In making these 

arguments, Taylor actually challenges the sufficiency of the evidence 

supporting his convictions. See generally Commonwealth v. Widmer, 744 

A.2d 745 (Pa. 2000). Thus, we will consider his challenge using sufficiency 

standards. 

Initially, we set forth our standard of review:

The standard we apply in reviewing the sufficiency of the 

evidence is 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. In 

applying [the above] test, we may not weigh the evidence 

and substitute our judgment for the fact-finder. In addition, 

we note that the facts and circumstances established by the 

Commonwealth need not preclude every possibility of 

innocence. Any doubts regarding a defendant’s guilt may 

be resolved by the fact-finder unless the evidence is so weak 

and inconclusive that as a matter of law no probability of 

fact may be drawn from the combined circumstances. The 

Commonwealth may sustain its burden of proving every 

element of the crime beyond a reasonable doubt by means 

of wholly circumstantial evidence. Moreover, in applying the 

above test, the entire record must be evaluated and all 

evidence actually received must be considered. Finally, the 

[trier] of fact while passing upon the credibility of the 

witnesses and the weight of the evidence produced, is free 

to believe all, part or none of the evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (citation 

omitted).
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Taylor argues that the Commonwealth did not prove that he took a 

substantial step toward delivering the drugs. The Crimes Code defines 

“criminal attempt” as follows:

§ 901. Criminal attempt

(a) Definition of attempt.—A person commits an 

attempt when with intent to commit a specific crime, 

he does any act which constitutes a substantial step 

toward the commission of that crime.

18 Pa.C.S.A. § 901. 

“Although the Crimes Code does not define “substantial step,” our courts 

have focused on what measures the actor has already undertaken in 

pursuance of the crime which indicate his or her resolve toward the 

commission of that crime.” Commonwealth v. Bolden, 532 A.2d 1172 (Pa. 

Super. 1987) (citations omitted). Stated differently, “[t]he substantial step 

test broadens the scope of attempt liability by concentrating on the acts the 

defendant has done and does not . . . focus on the acts remaining to be done 

before the actual commission of the crime.” Commonwealth v. Zingarelli, 

839 A.2d 1064, 1069 (Pa. Super. 2003) (citation omitted). “The defendant 

need not actually be in the process of the crime when arrested in order to be 

guilty of criminal attempt.” Id.

The trial court found no merit to Taylor’s claim:

In the instant matter, [Taylor] made a substantial step 

towards the commission of the crime prior to arrest by 

police. Detective Licata was with a CI at the time the CI 

called a phone number and arranged a drug buy for two 

bundles of heroin. Detective Licata listened to the phone 
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conversation and observed the phone number that was 

dialed. Once Detective Licata and the CI [arrived] at the 

pre-determined location of the drug transaction, they 

noticed [Taylor] already at the location. Again, the CI calls 

the exact phone number that was used to set up the drug 

transaction and Detective Licata notices that [Taylor] picks 

up the telephone. The CI proceeds to meet with [Taylor]. 

The Commonwealth submitted video evidence of the CI 

meeting with [Taylor]. Next, the surveillance team loses 

sight of the CI and [Taylor] at this moment, the surveillance 

team’s cover is blown. Both the CI and [Taylor] are arrested 

and marked money was found on [Taylor]. Once arrested, 

Detective Licata [dialed] the number that was used to set 

up the drug transaction and the phone that was found on 

[Taylor] began ringing.

***

After reviewing the evidence submitted, a jury could 

reasonably conclude that [Taylor] had the necessary intent 

to sell a controlled substance to the CI and took a 

substantial step in setting up the drug transaction ( i.e., 

arriving at the exact location the CI had mentioned on the 

phone, meeting with the CI, and having marked money on 

his person). Accordingly, this issue is without merit.

Trial Court Opinion, 6/5/18, at 5-7. 

Our review of the record supports the trial court’s rejection of Appellant’s 

claim. Taylor claims that the Commonwealth failed to prove his intent beyond 

a reasonable doubt because the Commonwealth failed to call the CI to testify. 

According to Taylor, the CI was the “only person who could testify to the actual 

events and conversation that occurred regarding the incident. The evidence 

shows [he] was attempting to steal the money from the CI and walk away 

with him in the process.” Taylor’s Brief at 13-14 (citations omitted). We 

disagree. As noted above, as with any other element of a crime, intent may 

be established by circumstantial evidence. Hansley, supra. The 
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Commonwealth had more than ample circumstantial evidence that Taylor took 

substantial steps to commit the crimes charged. 

Finally, Taylor raises an actual weight claim when he argues certain 

evidence, i.e., that no drugs or all of the marked money was found on his 

person, is entitled to greater weight than the testimony of the officers. 

Appellate courts in Pennsylvania review a weight-of-the-evidence claim for an 

abuse of discretion:

Appellate review of a weight claim is a review of the exercise 

of discretion, not the underlying question of whether the 

verdict is against the weight of the evidence. Because the 

trial judge has had the opportunity to hear and see the 

evidence presented, an appellate court will give the gravest 

consideration to the findings and reasons advanced by the 

trial judge when reviewing a trial court’s determination [of 

whether] the verdict is against the weight of the evidence.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citing Widmer, 

supra).

In rejecting this aspect of Taylor’s claim, the trial court stated:

The jury properly determined the credibility of the 

witnesses and there was more than enough evidence 

presented by the Commonwealth to properly find [Taylor] 

guilty of an attempt at delivery of a controlled substance. 

The verdict here does not shock one’s sense of justice. 

Accordingly, the verdict was not against the weight of the 

evidence.

Trial Court Opinion, 6/25/18, at 6. Once again, we agree with the trial court’s 

conclusion. See Commonwealth v. Graham, 109 A.3d 733, 736 (Pa. Super. 
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2015) (explaining that the weight to be accorded conflicting evidence is 

exclusively for the fact finder).

Taylor also argues that the Commonwealth did not sufficiently establish

that he used a communication facility. He argues that “Detective Licata did 

not see [him] use his cell phone to set up the drug deal. Detective Licata 

claimed [Taylor] answered his cell phone at the same time the CI was directed 

to call the number to the drug dealer but he did not testify he heard [Taylor] 

answer.” Taylor’s Brief at 13. Detective Licata testified that he observed 

Taylor answer a phone right after the CI dialed the number. See N.T.,

3/13/18, at 83. Detective Licata further testified that, once both the CI and 

Taylor were arrested, the detective dialed the same number again and Taylor’s 

cell phone began to ring. See id. at 90-91. As noted above, a criminal 

conviction may rest wholly on circumstantial evidence. Hansley, supra. 

Thus, the fact that Detective Licata did not hear and/or observe the entire set 

up of the drug deal, does not render the evidence insufficient to support the 

communication facility conviction.

In his second issue, Taylor argues that the trial court failed to impose 

an RRRI (Recidivism Risk Reduction Incentive) minimum sentence according 

to 61 Pa.C.S.A. section 4505. By order dated August 16, 2018 the trial court

acknowledges that when “the trial court fails to make a statutorily required 

determination regarding a defendant’s eligibility for an RRRI minimum 

sentence, as required, the sentence is illegal.” Order, 8/16/18, at 1 (quoting 

Commonwealth v. Robinson, 7 A.3d 868, 871 (Pa. Super. 2010)). The trial 
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court then asked this Court to “remand for the limited purpose of Taylor’s 

eligibility for the RRRI program. We therefore vacate Taylor’s judgment of 

sentence and remand for resentencing to include a determination of Taylor’s 

eligibility and, if applicable, the imposition of a new sentence which includes 

an RRRI minimum.

Convictions affirmed. Judgment of sentence vacated. Case remanded 

with instructions. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/14/2019