J-S27008-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TYREE MARCE SAUNDERS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 956 WDA 2020

Appeal from the Judgment of Sentence Entered December 18, 2019

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

No(s): CP-02-CR-0014353-2017

BEFORE: OLSON, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY OLSON, J.: FILED: January 20, 2022

Appellant, Tyree Marce Saunders, appeals the December 18, 2019 

judgment of sentence imposing an aggregate sentence of seven to fourteen 

years’ incarceration, followed by five years’ probation. We affirm.

The trial court summarized the factual and procedural history as follows:

[Appellant] was charged with one count of drug delivery resulting 

in death (18 Pa.C.S.[A.] § 2506(a)); one count of possession with 

intent to deliver a controlled substance (35 [P.S.]

§ 780-113(a)(30)); one count of possession of a controlled 

substance (35 [P.S.] § 780-113(a)(16)); and one count of 

criminal use of a communication facility (18 Pa.C.S.[A.] 

§ 7512(a)). The charges stemmed from an incident which began 

on March 21, 2017, when [Appellant] delivered multiple stamp

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* Retired Senior Judge assigned to the Superior Court.
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bags[1] containing fentanyl to the victim[.] The victim ingested 

the fentanyl and subsequently died on March 22, 2017. The 

Allegheny County Medical Examiner’s Office later performed an 

autopsy and determined that he died as a result of fentanyl 

poisoning.

During their investigation into the victim’s death, police examined 

the victim’s cell[ular tele]phone and discovered communications 

between the victim and a contact by the name of “[T]yree.” Police 

subsequently discovered that “[T]yree” was, in fact, [Appellant]. 

Upon examining the communications between the victim and 

[Appellant], police learned that the two men [] arranged a drug 

transaction using [cellular telephone] text messages prior to the 

victim’s death. The victim’s girlfriend also identified [Appellant] 

as a possible suspect and provided police with a photo[graph] of 

him.

As part of their investigation, police used the victim’s [cellular 

tele]phone to pose as the victim and arrange a controlled drug 

buy from [Appellant]. When [Appellant] arrived at the 

prearranged location to conduct the transaction, detectives took 

him into custody. During a search incident to arrest, police 

recovered two [ ] bundles of glassine bags containing fentanyl 

from [Appellant’s] coat pocket. Police also discovered that 

[Appellant] was holding the cell[ular telephone connected to the 

telephone number used] to arrange the controlled drug buy.

A jury convicted [Appellant] of drug delivery resulting in death, 

two counts of drug possession, and criminal use of a 

communication device on September 12, 2019. On December 18, 

2019, [the trial] court imposed an aggregate sentence of seven [] 

to [fourteen] years’ incarceration, followed by five [] years’ 

probation in relation to [Appellant’s] convictions.[2] On January 

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1 The term “stamp bag” is used to identify the common packaging for 

narcotics. See Commonwealth v. Luczki, 212 A.3d 530, 548 (Pa. Super. 

2019). 

2 At sentencing, the trial court imposed a term of incarceration at count 1 

(drug delivery resulting in death) of 80 to 160 months and at count 5 (criminal 

use of a communication facility) of six to 12 months. See N.T. Sentencing 

Hearing, 12/18/19, at 10-11. The court ordered that Appellant must serve 

(Footnote Continued Next Page)
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23, 2020, [Appellant] filed a post-sentence motion in which he 

challenged the discretionary aspects of his sentence and asserted 

that the jury’s verdict was against the weight of the evidence. 

[Appellant’s] post-[sentence] motion was [denied by operation of 

law pursuant to Pa.R.Crim.P. 720(B)(3)(a)3] on August 18, 

2020[.]

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these terms of incarceration consecutively. It appears that, within its written 

order of sentence, the trial court amended the sentence at count 1 to six-andone-half to 13 years’ incarceration, i.e., 78 to 156 months’ incarceration, such 

that the aggregate sentence totaled seven to 14 years’ incarceration. See

Sentence Order, 12/18/19. While a trial court is authorized to modify an order 

within 30 days of entry, that court must notify the parties of such modification. 

See 42 Pa.C.S.A. § 5505 (stating, “[e]xcept as otherwise provided or 

prescribed by law, a court upon notice to the parties may modify or rescind 

any order within 30 days after its entry, notwithstanding the prior termination 

of any term of court, if no appeal from such order has been taken or allowed.”) 

(emphasis added). 

The trial court did not provide notification in the case sub judice. The failure 

to provide notification of a sentencing modification implicates the legality of 

Appellant’s sentence, an issue we may raise sua sponte. See 

Commonwealth v. Strafford, 194 A.3d 168, 172 (Pa. Super. 2018) (“This 

[C]ourt may review issues regarding the legality of sentence sua sponte.”). 

Apart from the lack of notification, Appellant’s amended sentence is otherwise 

lawful. Moreover, the record reflects that all parties were aware of the 

modification as Appellant, the Commonwealth, and the trial court rely upon 

the sentence as articulated within the written sentencing order. The

modification inures to the benefit of Appellant, and the Commonwealth does 

not take issue with the modification. Accordingly, we find that the interests 

of justice are best served in the case sub judice by declining to remand for 

resentencing based solely upon the failure to notify the parties of modification. 

Herein, we will refer to the sentences as articulated within the sentence order. 

See Commonwealth v. Borrin, 80 A.3d 1219, 1226 (Pa. 2013) (determining 

that a legal sentencing order controls over the oral statements of the 

sentencing court).

3 Rule 720(B)(3)(a) states that if a trial court fails to decide a post-sentence 

motion within 120 days of its filing, or grant an extension (which was not the 

case here), then the post-sentence motion is deemed denied by operation of 

law. Pa.R.Crim.P. 720(B)(3)(a).
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Trial Court Opinion, 2/23/21, at 2-3 (extraneous capitalization omitted). This 

appeal followed.4

Appellant raises the following issues for our review:

[1.] Were the [convictions] against the weight of the evidence 

because the testimony of [a Commonwealth witness] was 

not credible, there was no reliable evidence that [Appellant] 

delivered the drugs that killed [the victim], and the 

inculpatory statement was wholly unreliable?

[2.] Did the trial court abuse[] its discretion when it imposed a 

manifestly excessive and unreasonable sentence that 

double counted factors from the guidelines[,] failed to 

properly consider all of the relevant sentencing criteria 

under 42 Pa.C.S.A. § 9721(b)[,] and did not place adequate 

reasons on the record for the sentence imposed or state the 

permissible range of sentences?

Appellant’s Brief at 5 (reordered for ease of disposition; extraneous 

capitalization omitted). 

Appellant’s first issue raises a weight of the evidence claim.5 Id. at 

36-43. Appellant argues that the Commonwealth witness’s testimony was not 

credible because she was a drug user who had motive to lie, and impeachment 

testimony established she did, in fact, lie in providing her testimony at trial. 

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4 Both Appellant and the trial court complied with Pa.R.A.P. 1925.

5 The fact that Appellant’s post-sentence motion was denied by operation of 

law, pursuant to Rule 720(B)(3)(a), does not preclude our review of his weight 

of the evidence claim. See Commonwealth v. Upshur, 764 A.2d 69, 73 

(Pa. Super. 2000) (stating that a weight claim may be reviewed on appeal 

despite the claim’s denial by operation of law because “the effect of the denial 

operates in the same manner as if the [trial] court had denied the motion 

itself”).
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Id. at 36-40. Further, he contends that no reliable evidence established that 

Appellant delivered the drugs that caused the victim’s death because there 

were no eyewitnesses, the cellular telephone text messages did not confirm 

delivery, and multiple drug dealers were selling the same stamp bags labelled 

“NBA Finals.” Id. at 40-42.6 Finally, Appellant claims that [a police 

detective’s] testimony regarding Appellant’s inculpatory statement was 

unreliable because Appellant did not sign a written Miranda7 waiver prior to 

making any statement to the detective, the alleged inculpatory statement was 

not recorded, and the alleged inculpatory statement was not disclosed in 

pre-trial discovery. Id. at 42-43. For these three reasons, Appellant argues 

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6 To the extent that Appellant’s argument raises concerns as to the sufficiency 

of the evidence regarding the element of delivery, a claim Appellant raised in 

his Rule 1925(b) concise statement, Appellant waived such a claim before this 

Court. See Commonwealth v. Heggins, 809 A.2d 908, 912 n.2 (Pa. Super. 

2002) (stating, “an issue identified on appeal but not developed in the 

appellant’s brief is abandoned and, therefore, waived”); see also Pa.R.A.P. 

2119(a) (requiring an appellate brief to contain argument on each issue raised 

with citation of authorities as deemed pertinent).

Even if Appellant properly framed his argument as a sufficiency claim, it would 

not warrant relief. It is well-established that the Commonwealth may sustain 

its burden of proof by means of wholly circumstantial evidence. 

Commonwealth v. Edwards, 229 A.3d 298, 305 (Pa. Super. 2020). 

Moreover, by arguing a weight of the evidence claim, Appellant concedes that 

the Commonwealth produced sufficient evidence of each element of the crime. 

Id. at 306.

7 Miranda v. Arizona, 384 U.S. 436 (1966).
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that “the evidence of guilt was utterly weak and inconclusive” and that its

convictions should be vacated and a new trial granted. Id. at 43.

Our standard of review in a weight of the evidence claim is well-settled.

A motion for a new trial based on a claim that the [jury] verdict is 

against the weight of the evidence is addressed to the discretion 

of the trial court. A new trial should not be granted because of a 

mere conflict in the testimony or because the [trial court] on the 

same facts would have arrived at a different conclusion. When a 

trial court considers a motion for a new trial based upon a weight 

of the evidence claim, the trial court may award relief only when 

the jury’s verdict is so contrary to the evidence as to shock one’s 

sense of justice, and the award of a new trial is imperative so that 

right may be given another opportunity to prevail. The inquiry is 

not the same for an appellate court. Rather, when an appellate 

court reviews a weight claim, the [appellate] court is reviewing 

the exercise of discretion by the trial court, not the underlying 

question of whether the verdict was against the weight of the 

evidence. The appellate court reviews a weight claim using an 

abuse of discretion standard.

At trial, the jury was the ultimate fact-finder and the sole arbiter 

of the credibility of each of the witnesses. Issues of witness 

credibility include questions of inconsistent testimony and 

improper motive. A jury is entitled to resolve any inconsistencies 

in the Commonwealth’s evidence in the manner that it sees fit.

Commonwealth v. Jacoby, 170 A.3d 1065, 1080 (Pa. 2017) (citations and 

quotations omitted). “[T]he trier of fact, in passing upon the credibility of 

witnesses, is free to believe all, part, or none of the evidence.” Id., quoting

Commonwealth v. Rivera, 983 A.2d 1211, 1220 (Pa. 2009). 

In its Rule 1925(a) opinion, the trial court set forth the evidence elicited 

during Appellant’s jury trial. The trial court explained,

In the instant matter, the Commonwealth proved – to the jury’s 

satisfaction – that [Appellant] delivered fentanyl to the victim, 

which ultimately caused the victim’s death. The Commonwealth 
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presented evidence establishing that [Appellant] arranged a drug 

transaction with police detectives the day after the victim fatally 

overdosed using the same cell[ular tele]phone he []used to 

arrange the drug transaction with the victim. In addition, police

detectives testified that, when [Appellant] arrived at the victim’s 

place of employment to conduct the controlled drug buy, he was 

arrested and found to be in possession of fentanyl and the cell[ular 

tele]phone that had been used to conduct both the March 21, 

2017[] drug transaction with the victim and the subsequent 

transaction with police. Lastly, when [Appellant] was arrested, he 

admitted to police that he had delivered the stamp bags 

containing fentanyl to the victim.

Trial Court Opinion, 2/23/21, at 5-6 (extraneous capitalization omitted). The 

trial court concluded that Appellant was not entitled to a new trial on his weight 

of the evidence claim because it was within the province of the jury as 

fact-finder to determine the weight and credibility afforded to the testimony

and evidence presented at trial and to believe all, part, or none of it in reaching 

its verdict. Id. at 10-11. Thus, the trial court did not find that the verdict 

“shocked one’s sense of justice.” Jacoby, supra.

Upon review, we discern no abuse of discretion in the denial of 

Appellant’s weight of the evidence claim. Appellant’s challenges to the 

credibility and reliability of the evidence require this Court to step into the 

shoes of the jury, as fact-finder, to reassess and reweigh the evidence in favor 

of Appellant. This is not the role and function of this Court on review. See

Commonwealth v. Clay, 64 A.3d 1049, 1056 (Pa. 2013) (stating, it is 

inappropriate for an appellate court to “revisit[] the underlying question of 

whether the verdict was against the weight of the evidence”); see also 

Commonwealth v. Delmonico, 251 A.3d 829, 837 (Pa. Super. 2021) 
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(stating, “[i]t is well-settled that we cannot substitute our judgment for that 

of the trier of fact.”). Consequently, Appellant is not entitled to relief. 

Appellant’s second issue, arguing that the trial court abused its 

discretion by imposing a manifestly excessive and unreasonable sentence,

implicates the discretionary aspects of sentencing. Appellant’s Brief at 5. 

When an appellant challenges the discretionary aspects of a sentence, the 

right to appeal is not absolute. Commonwealth v. Dunphy, 20 A.3d 1215, 

1220 (Pa. Super. 2011). Instead, before this Court can address the merits of 

such a challenge, we must determine whether the appellant invoked this 

Court’s jurisdiction by satisfying a four-part test. See Commonwealth v. 

Luketic, 162 A.3d 1149, 1159-1160 (Pa. Super. 2017) (stating, “[o]nly if the 

appeal satisfies these requirements may we proceed to decide the substantive 

merits of [an a]ppellant’s claim”).

We conduct a four-part analysis to determine: (1) whether 

appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 

and 903; (2) whether the issue was properly preserved at 

sentencing or in a motion to reconsider and modify sentence, see

Pa.R.Crim.P. 720; (3) whether appellant's brief has a fatal defect, 

[see] 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, [see] 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (citations 

omitted).

In the instant case, Appellant filed a timely notice of appeal, properly 

preserved his claims by filing a post-sentence motion, and included a Rule 

2119(f) statement in his brief. See Appellant’s Brief at 16-19. Thus, we 
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examine whether he raised a substantial question. A substantial question is 

raised by demonstrating that the trial court’s actions were inconsistent with 

the Sentencing Code or contrary to a fundamental norm underlying the 

sentencing process. Commonwealth v. Bonner, 135 A.3d 592, 603 (Pa. 

Super. 2016). Whether an appellant raises a substantial question on appeal

is evaluated on a case-by-case basis. Id. This Court will not look beyond the 

statement of questions presented and the Rule 2119(f) statement to 

determine whether a substantial question exists. Commonwealth v. 

Radecki, 180 A.3d 441, 468 (Pa. Super. 2018). 

Here, Appellant argues that the trial court imposed a manifestly 

excessive sentence because the trial court: (1) impermissibly double counted 

a factor already implicit in the sentencing guidelines; (2) placed insufficient 

reasons on the record for imposing the sentence where the only reference was 

to the gravity of the offense; and (3) failed to properly consider all of the 

sentencing factors of 42 Pa.C.S.A. § 9721(b) or any mitigating evidence when 

imposing the sentence. Appellant’s Brief at 17-18.

A substantial question is presented where an appellant argues that the 

trial court imposed a manifestly excessive sentence by focusing solely on the 

gravity of the crime. See Commonwealth v. Boyer, 856 A.2d 149, 152 (Pa. 

Super. 2004). Moreover, an averment that a trial court impermissibly relied 

on factors already taken into account within the sentencing guidelines raises 

a substantial question. Commonwealth v. Clemat, 218 A.3d 944, 959 (Pa. 
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Super. 2019); see also Commonwealth v. Goggins, 748 A.2d 721, 731-

732 (Pa. Super. 2000) (en banc). Here, Appellant argues that the trial court, 

in imposing its sentence, considered factors already implicit in the sentencing 

guidelines and focused solely on the gravity of the offenses. Therefore, 

Appellant raised a substantial question. Thus, we proceed to the merits of 

Appellant’s claims.

Sentencing is a matter vested in the sound discretion of the [trial 

court], and a sentence will not be disturbed on appeal absent a 

manifest abuse of discretion. In this context, an abuse of 

discretion is not shown merely by an error in judgment. Rather, 

the appellant must establish, by reference to the record, that the 

[trial] court ignored or misapplied the law, exercised its judgment 

for reasons of partiality, prejudice, bias[,] or ill[ ]will, or arrived 

at a manifestly unreasonable decision.

Commonwealth v. Blount, 207 A.3d 925, 934-935 (Pa. Super. 2019) 

(citation omitted), appeal denied, 218 A.3d 1198 (Pa. 2019).

When this Court reviews the discretionary aspects of a sentence, its 

analysis is governed by Sections 9781 of the Pennsylvania Sentencing Code. 

Section 9781, in pertinent part, states: 

§ 9781. Appellate review of sentence

. . .

(c) Determination on appeal.--The appellate court shall vacate 

the sentence and remand the case to the sentencing court with 

instructions if it finds:

(1) the sentencing court purported to sentence within the 

sentencing guidelines but applied the guidelines erroneously;

(2) the sentencing court sentenced within the sentencing 

guidelines but the case involves circumstances where the 

application of the guidelines would be clearly unreasonable; or
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(3) the sentencing court sentenced outside the sentencing 

guidelines and the sentence is unreasonable.

In all other cases the appellate court shall affirm the sentence 

imposed by the sentencing court.

(d) Review of record.--In reviewing the record the appellate

court shall have regard for:

(1) The nature and circumstances of the offense and the history 

and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the 

defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(c) and (d). Appellant’s aggregate sentence of seven to 

fourteen years’ imprisonment to be followed by a five-year period of probation 

falls within the sentencing guidelines;8therefore, we may vacate and remand 

only if the sentence is clearly unreasonable. See 42 Pa.C.S.A. § 9781(c)(2).

Appellant argues that his sentence is manifestly excessive because the 

trial court impermissibly double counted factors when it focused on the lethal 

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8 Appellant’s assertion that the maximum sentences imposed for his 

convictions at count 1 and count 5 were outside of, or at the top of, the 

aggravated range for sentencing purposes, see Appellant’s Brief at 21, ignores 

that “the sentencing guidelines provide for minimum and not maximum 

sentences.” Boyer, 856 A.2d at 153 (emphasis added). Here, Appellant’s 

minimum sentences for his convictions at count 1 and count 5 were 

six-and-one-half years’ incarceration and six months’ incarceration, 

respectively. See Order of Sentence, 12/18/19. Appellant concedes that 

these minimum sentences are within the standard range for each count. 

Appellant’s Brief at 21. Moreover, the trial court may impose the sentences 

that are set to run consecutively or concurrently. 42 Pa.C.S.A. § 9721(a).
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nature of fentanyl because the lethal nature of the drug is already factored 

into the sentencing guidelines as an element of his drug delivery resulting in 

death conviction. Appellant’s Brief at 24-25 (emphasis added). Appellant 

further argues that the trial court focused solely on the gravity of the offense 

– i.e., the lethal nature of fentanyl – such that it placed insufficient reasons 

on the record and inadequately considered the sentencing factors, including 

mitigating evidence. Id. at 30-33. Appellant’s arguments are unavailing.

Appellant fails to demonstrate that the trial court’s sentence was clearly 

unreasonable. “[W]here a sentence is within the standard range of the 

[sentencing] guidelines, Pennsylvania law views the sentence as appropriate 

under the Sentencing Code.” Commonwealth v. Moury, 992 A.2d 162, 171 

(Pa. Super. 2010). Moreover, a trial court, in imposing its sentence, may 

consider factors already included in the sentencing guidelines so long as those 

factors are not “the sole reason for increasing or decreasing a sentence to the 

aggravated or mitigated range. Commonwealth v. Simpson, 829 A.2d 

334, 339 (Pa. Super. 2003) (emphasis added) (stating that, a trial court may 

consider factors already included in the guidelines if “they are used to 

supplement other extraneous sentencing information”). The standard 

sentencing range for the offense of drug delivery resulting in death is 60 to 

78 months’ incarceration. The trial court imposed a minimum sentence of 78 

months’ incarceration. The standard range for criminal use of a 

communication facility is restorative sanctions to nine months’ incarceration. 
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The trial court imposed a minimum sentence of six months’ incarceration. 

Therefore, Appellant’s sentences on count 1 and count 5 were within the 

standard range of the sentencing guidelines and, thus, were not clearly 

unreasonable. See Commonwealth v. Coss, 695 A.2d 831, 833-834 (Pa. 

Super. 1997) (sentence is not inappropriate or excessive where the sentence 

is within the standard range of the applicable guidelines). 

Moreover, the trial court properly considered the relevant factors 

including mitigating evidence. First, the record reveals that, at sentencing,

the trial court benefited from defense counsel’s arguments, a statement from 

the victim’s mother, Appellant’s statement by way of allocution, two 

pre-sentence investigation (“PSI”) reports, and the applicable guidelines. See

N.T. Sentencing Hearing, 12/18/19, at 2-9. The trial court indicated that it 

reviewed the PSI reports and the applicable guidelines. It further balanced

Appellant’s lack of a criminal record against his actions of dealing a drug he 

knew was dangerous when imposing Appellant’s standard range sentence. Id.

at 9-10 (emphasis added).9 Thus, the trial court’s reasoning was proper and 

did not consider a factor already included in the sentencing guidelines as “the 

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9 The trial court, after noting it reviewed two PSI reports and the applicable 

guidelines, explained:

It’s clear that you have no prior criminal record. It is also clear 

you were dealing a drug, with common knowledge, that has the 

ability to cause death or serious bodily injury to someone. You 

weren’t dealing marijuana. You were dealing fentanyl.

N.T. Sentencing Hearing, 12/18/19, at 9-10. 
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sole reason for increasing or decreasing a sentence to the aggravated or 

mitigated range.” Simpson, supra. 

Moreover, by indicating on the record that it possessed and reviewed

the PSI reports, the trial court satisfied its requirement of stating its reasons 

for the sentences on the record. Commonwealth v. Leatherby, 116 A.3d 

72, 83-84 (Pa. Super. 2015) (holding that, when the trial court possesses a 

PSI report, we presume it “was aware of relevant information regarding the 

defendant’s character and weighed those considerations along with mitigating 

statutory factors”); see also Boyer, 856 A.2d at 154 (stating that, a trial 

court’s indication that it reviewed PSI report satisfies the requirement of 

stating its reasoning on the record). Thus, the trial court satisfied the 

requirement that it place its reasoning on the record and did not abuse its

discretion in imposing Appellant’s standard range sentence. See Leatherby, 

116 A.3d at 84 (stating, “[h]aving been fully informed by the [PSI] report, the 

[trial] court’s discretion should not be disturbed”). 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/20/2022