J. S27008/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

KEITH CONDE, : No. 156 EDA 2014

:

 Appellant :

Appeal from the Judgment of Sentence, July 11, 2013,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0010909-2012

BEFORE: FORD ELLIOTT, P.J.E., STABILE AND FITZGERALD,* JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 17, 2015

Appellant appeals his convictions for possessing a controlled substance 

with intent to deliver, simple possession, and criminal use of communication 

facility.1 Finding no error below, we affirm.

On multiple dates in early 2012, police observed appellant make 

controlled drug buys with a confidential informant in Philadelphia. Appellant 

used a telephone to facilitate these buys. Appellant was convicted by jury 

trial on May 3, 2013, and sentenced to an aggregate term of 7 to 15 years’ 

imprisonment on July 11, 2013.

 

* Former Justice specially assigned to the Superior Court.

1 35 P.S. §§ 780-113(a)(30) and (a)(16), and 18 Pa.C.S.A. § 7512(a), 

respectively.
J. S27008/15

- 2 -

On appeal, appellant argues that the trial court erred in not permitting 

him to obtain the identity of the confidential informant. Appellant also 

contends that the evidence was insufficient to sustain his convictions, that 

his convictions are against the weight of the evidence, and that his sentence 

was excessive.

We find no error with the trial court’s holding. After a thorough review 

of the record, the briefs of the parties, the applicable law, and the 

well-reasoned opinion of the trial court, it is our determination that there is 

no merit to the questions raised on appeal. Judge Alice Beck Dubow’s 

comprehensive, 14-page opinion, filed on June 12, 2014, thoroughly 

discusses and properly disposes of the questions presented. We will adopt it 

as our own and affirm on that basis.

Additionally, we note that appellant has waived his sentencing issue.

A challenge to the discretionary aspects of a 

sentence must be considered a petition for 

permission to appeal, as the right to pursue such a 

claim is not absolute. Two requirements must be 

met before we will review this challenge on its 

merits. First, an appellant must set forth in his brief 

a concise statement of the reasons relied upon for 

allowance of appeal with respect to the discretionary 

aspects of a sentence. Second, the appellant must 

show that there is a substantial question that the 

sentence imposed is not appropriate under the 

Sentencing Code. The determination of whether a 

particular issue raises a substantial question is to be 

evaluated on a case-by-case basis. In order to 

establish a substantial question, the appellant must 

show actions by the trial court inconsistent with the 

Sentencing Code or contrary to the fundamental 

norms underlying the sentencing process.
J. S27008/15

- 3 -

Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa.Super. 2014), 

quoting Commonwealth v. Bowen, 55 A.3d 1254, 1262-1263 (Pa.Super. 

2012), appeal denied, 64 A.3d 630 (Pa. 2013); see also Pa.R.A.P., 

Rule 2119(f), 42 Pa.C.S.A. (requiring concise statement in brief to appeal 

discretionary aspects of sentence).

Appellant has not included in his brief a concise statement of the 

reasons relied upon for allowance of appeal of the discretionary aspects of 

his sentence. The Commonwealth has specifically objected to appellant’s 

omission of the concise statement. (Commonwealth brief at 22.) “Where an 

appellant fails to comply with Pa.R.A.P. 2119(f) and the Commonwealth 

objects, the issue is waived for purposes of review.” Commonwealth v. 

Montgomery, 861 A.2d 304, 308 (Pa.Super. 2004). Consequently, 

appellant has waived this issue.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/17/2015
I Pursuant to 35 P.S. §780- l 13(a)(30). 

? Pursuant to 35 P.S. §7SO- J l 3(a)(l 6). 

1 Pursuant to 18 PaC.S.A. §7512. 

facing his own charges for narcotics and "chose to give us information on his supplier." (N.T. 

Philadelphia Police Department, was working with a confidential informant ("CI") who was 

Police Officer Richard Gramlich, from the Intensive Drug Investigation Squad of the 

FACTUAL HISTORY 

Def end ant appealed. 

court sentenced the Defendant to a total of seven to fifteen years of incarceration. The 

Communication Facility3 on May 3, 2013 after a three day long trial. On July 11, 2013, the trial 

Controlled Substance ("PWJD"), 1 four counts of Knowingly and Intentionally Possessing a 

Controlled Substance by a Person Not Regulated ("K&l"),2 and one count of Criminal Use of 

occasions, a jury convicted the Defendant of four counts of Possession with Intent to Deliver a 

("Defendant") sell large quantities of heroin to a confidential informant on four different 

As a result of the Philadelphia Police Department observing the Defendant, Keith Conde, 

OPINION 

KEITH CONDE FD LED 

JUN 1·2 2014 

c .. 

First"JJ~~f ~'lf eta~s Unit 

,s net of PA 

156 EDA 2014 

v. 

COMMONWEAL TH OF PENNSYLVANIA CP-51-CR~OOl 0909-2012 

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY 

rmsr JUDICIAL DISTRICT OF. PENNSYLVANIA 

TRIAL DIVISION - CRIMINAL 

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2 

Officer Gramlich then gave the CI pre-recorded "buy money" and stayed in an unmarked 

vehicle while Officer Gramlich observed the CI approach the corner of "Horrocks and 

Longshore" in Philadelphia, PA. (N.T. 5/1/13 p. 35, 37, 42, 46.) From approximately half a 

block away, Officer Gramlich observed a 2000 four-door black Lincoln with a Pennsylvania 

license plate marked HXR-4882 ("Lincoln") occupied by two males, a driver and a front 

passenger drive up to the Cl. (N.T. 5/1/13 p. 38, 49, 123.) Tile CI entered the rear passenger 

seal of the vehicle, remained there for a few minutes, and then exited the vehicle. (N.T. 3/18/13 

p. 38.) The CI immediately returned to Officer Gramlich. 

The CI, while the police were present, purchased heroin from the Defendant on numerous 

occasions. The first transaction occurred on February 3, 2012 at approximately l :40 P.M. when a 

plain-clothed Officer Gramlich and Police Officer Thomas Kelley (from the District Attorney's 

Office Narcotics Unit) met the Cl at a confidential location and spoke with the CI about how 

they wanted the "transaction to go down." (N.T. 5/1/13 p. 36, 49, 60.) Officer Gramlich 

thoroughly searched the CI to ensure that he had no money or contraband. (N.T. 5/1/13 p. 37, 41) 

The CI dialed the same phone number that the CI had previously provided to Officer Gramlich, 

267-386-6365, and had a «drug-related conversation with the person 011 the other end of that 

phone." (N.T. 5/1/13 p. 37, 43-44.) The Cl then relayed to Officer Gramlich a specific time and 

location that the CI and the person on the other end of the phone agreed to meet to deliver heroin 

to the CI. (N.T. 5/1/13 p. 37.) 

5/1/13 20, 21, 31.) The Cl provided Officer Gramlich with a phone number and a description of 

his heroin dealer. (N.T. 5/1/13 p. 32-33.) 

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) 

~ The jury found the Defendant not guilty oft he charges related to the February 3, 20 I 2 transaction. The difference 

between this first transaction and the other four transactions was that for this lirsl transaction, none of the police 

officers were able to identify the Defendant as a driver or passenger in the Lincoln and there was another person in 

the Lincoln. For the other four transactions, the police identified the Defendant as the driver of the Lincoln and no 

one else was in the vehicle. 

S/1113 p. 64.) After the transaction, Officer Gramlich thoroughly searched the CI to ensure that 

N.T. 5/2/13 p. 173, Exhibit C-7) The packets were again stamped with "WASSUP." (N.T. 

or 442 milligrams, of a substance that tested positive for heroin. (N.T. 5/1/13 p. 64, 72, 113, 

returned to Officer Gramlich. (N.T. 5/1/13 p. 64.) The CI turned over approximately 63 packets, 

The CI entered the vehicle for a few minutes, exited the vehicle, and immediately 

p. 180-182.) 

was driving the car and there was no one else was in the car. (N.T. 5/1/13 p. 69-71; N.T. 5/2/13 

Officer Gramlich and Detective George both observed that it was the Defendant who 

63, 123.) 

5/1/13 p. 63; N.T. 5/2/13 p. 180-182.) The same Lincoln pulled up to the corner. (N.T. 5/I/l3 p. 

money," and watched the CI walk again to the corner of "Horrocks and Longshore." (N.T. 

p. 180-182.) Officer Gramlich thoroughly searched the CI, handed the CI "pre-recorded buy 

the CI, who made a phone call to the same phone number. (N.T. 511/13 p. 62, 149; N.T. 5/2/13 

5/J/13 p. 61-63; N.T. 5/2/13 p. 180-182.) Officer Gramlich and Detective Joe George met with 

The second transaction occurred on February I 6, 2012. at approximately 1 :20 P.M. (N.T. 

except when he was inside the vehicle. (N.T. 5/1/13 p. 50-51.)4 

'"WASSAP" in black ink. (N.T. 5/1/13 p. 59.) The CI did not leave Officer Grarnlich's sight, 

53, I 08; N.T. 5/2/J 3 p.172-173; Exhibit C-4.) Some of the packets were stamped with 

packets, or 975 milligrams, of a substance that tested positive for heroin. (N.T. 5/l/13 p. 39, 42, 

Officer Gramlich thoroughly searched the Cl. The CI turned over approximately 65 

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4 

The third and forth transactions occurred on March 7, 2012, and March 21, 2012 in the 

late afternoon. Officer Gramlich and Detective George met with the CI, who made a phone call 

to the same phone number as before. (N.T. 5/l/l3 p.76-77, 85, 149.) As a result of the phone 

calls, the same events occurred on each day. Officer Gramlich thoroughly searched the CI, 

handed the CI "pre-recorded buy money," and observed as the CJ walked to the comer of 

"Horrocks and Longshore." (N.T. 5/1/13 p. 76-77, 85, 149.) The Lincoln pulled up to the comer. 

(N.T. 5/1/l 3 p. 77, 123.) The Cl got into the vehicle for a few minutes, exited the vehicle, and 

returned to Officer Gramlich. (N.T. 511/13 p. 79, 85-86.) The CI turned over packets of a 

substance that tested positive for heroin. (N.T. 5/1/13 p. 80-81, 86, 116-117.) Some of the 

packets were stamped with "WASSUP'' and some were stamped with "HALLADAY." (N.T. 

5/l /l 3 p. 80-81, 86, 116-117 .) After the transaction, Officer Gramlich thorough I y searched the 

After the transaction, "back-up officers," who were stationed in the area, followed the 

Lincoln lo a shopping center at "G and Hunting Park." (N.T. 5/1/13 p. 64.) Officer Gramlich 

drove to that location, spotted the Defendant at a phone store, and contacted an unmarked 

"SWAT officer, Officer Vallejo." (N.T. 5/1/13 p. 65, 71.) Officer Gramlich explained to Officer 

Vallejo that the Lincoln was involved in an ongoing drug investigation, and asked Officer 

Vallejo to stop the Lincoln and obtain identification from the driver. (N.T. 5/1/13 p. 65, 71; N.T. 

5/2/13 p. 86-88.) Officer Vallejo followed the Lincoln, pulled the car over for not using a tum 

signal, and obtained identification information from the Defendant. The identification 

information confirmed that the Defendant's name was Keith Conde. (N.T. 5/1/13 p. 66; N.T. 

5/2/13 p. 86-88.) 

he did not have additional money or contraband. (N.T. 5/1/13 p, 64-65.) The Cl did not leave 

Officer Gramlich's sight except when he was inside the vehicle. (N.T. 5/1/13 p. 73-74.) 

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The Cl then stepped into the vehicle, the Defendant started driving west on Longshore, 

wenl around the corner at Souder Street, and then pulled into a driveway while back-up police 

officers and Officer Gramlich followed the vehicle. (N.T. 5/1/13 p. 92.) The CI exited the 

vehicle that was stopped in the driveway and returned to Officer Gramlich. (N.T. 5/1/13 p. 95.) 

The CI turned over approximately 299 packets, or 6.212 grams, of a substance that tested 

The fifth and final transaction occurred on April 20, 2013, at approximately 4:00 P.M. 

Officer Gramlich met with the Cl tor the fifth time and final time. The CI made a phone call to 

the same number. (N.T. 5/1/13 p. 90-92, 149.) Once again, Officer Gramlich thoroughly 

searched the CT, handed the CI money, and observed as the CI walked to the corner of "Horrocks 

and Longshore." (N.T. 5/1/13 p. 91-92.) The Lincoln pulled up to the corner. (N.T. 5/1/13 p. 92, 

94, 10 I, 123.) Officer Gramlich observed that the Defendant driving the car and no one else was 

in the car. (N.T. 5/1/13 p. 92.) 

Again, Officer Gramlich and Detective George observed that it was the Defendant who 

was driving the car and 110 one else was in the car. (N.T. 5/ 1/13 p, 78- 79, 85, 87-88; N.T. 5/2/13 

p. 182, 184.) 

On March 7, 2012, the Cl handed over approximately 63 packets, or 1.235 grams of 

heroin. (N.T. 5/1/13 p. 80-81, 116; N.T. 5/2/13 p. 174; Exhibit C-11.) On March 21, 2012, the 

Cl handed over approximately 130 packets, or 2.115 grams of heroin (N.T. 511113 p. 86, 117, 

N.T. p. 174-175, Exhibit C-13.) 

CJ to ensure Chat he did not have additional money or contraband. (N.T. 511 /13 p, 77, 86.) The 

CI did not leave Officer Gramlich's sight except when he was inside the vehicle. (N.T. 5/1/13 p. 

76. 79, 86.) 

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The $50 bill that was missing from the pre-recorded buy money recovered from the 

Defendant was never found. (N.T. 5/1/13 p. 121; N.T. 5/2/13 p. 44.) 

Officer Gramlich used his own cell phone to call the phone number that the CI had been 

calling during the entire investigation and the cell phone that was recovered from the Defendant 

rang. (N.T. 5/1/13 p. 96, 149.) 

The police arrested and searched the Defendant. (N.T. 5/l/13 p. 95; N.T. 5/2/13 p. 104- 

I 07.) The officers recovered the following items from the Defendant: a cell phone, $1,950 of 

the $2,000 pre-recorded "buy money," an additional $275 that was not pre-recorded, and a wallet 

with identification cards that identified the Defendant as Keith Conde. (N.T. 5/1/13 p. 96-99; 

N.T. 5/2/13 p. 104-107.) 

At Officer Grarnlich's direction, eight to ten back-up police officers blocked the 

driveway where the Lincoln was parked so that the Defendant could not escape. (N.T. 5/1/13 p. 

95.) 

After the transaction, Officer Gramlich thoroughly searched the CI to ensure that he did 

not have additional money or contraband. (N.T. 511/13 p. 101.) The CI did not leave Officer 

Grarnlich's sight except for "five or six seconds" when be was riding inside the vehicle. (N.T. 

5/1/13 p. 92, 101.) 

positive for heroin. (N.T. 5/1/13 p. 94, 99, 118; N.T. 5/2/13 p. 175; Exhibit C-17.) The packets 

were stamped with "WASSUP." (N.T. 5/1/13 p. 99.) 

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preparation of the defense and that the request is reasonable ... Only after the defendant shows 

establish, pursuant to Ruic 573(8)(2)(a)(i), that the information sought is material to the 

privilege and obtain disclosure of a confidential informant's identity, a defendant must first 

Roebuck, 545 Pa. 471, 681 A.2d 1279, 1283 n. 6 (1996). "In order to overcome this qualified 

1279 citing Commonwealth v. Bing. 551 Pa. 659, 713 A.2d 56, 58 (1998) and Commonwealth v. 

identity of a confidential source. Commonwealth v. Marsh, 606 Pa. 254, 260-261, 997 A.2d 

Pennsylvania reiterated that the Commonwealth enjoys a qualified privilege to withhold the 

Identity of the Confidential Informant. In Commonwealth v. Marsh, U10 Supreme Court of 

The trial court did not abuse its discretion by denying the Defendant's Motion to Disclose 

A. The Trial Court Properly Denied the Defendant's Motion to Disclose the 

Identity of the Confidential Informant and the Defendant's Constitutional 

Rights Were Not Violated. 

BASIS FOR TRIAL COURT'S DECISION 

5. "Whether the sentence was an improper sentence?" 

4. "Whether the verdict was against the weight of the evidence?" 

whether a judgment of acquittal should have been awarded?" 

3. "Whether the verdict was based upon insufficient evidence as a matter of law and thus 

court to allow the Defendant to face his accuser (informant)?" 

2. "Whether the Defendant's Constitutional Rights were violated for the failure of the trial 

Commonwealth's Informant?" 

l. "Whether the trial court erred in denying Petitioner's Motion for the disclosure of the 

The Defendant raises the following issues on appeal: 

ST A TEMENT OF MATTERS COMPLAINED OF ON APPEAL 

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l 925(b)(4)(vii). 

The Defendant next asserts that his "constitutional rights were violated for the failure of 

the trial court to allow [him] Lo face his accuser (informant)." (Statement of Errors ir 2.) As an 

initial matter, the Defendant waived this objection because it is not specific enough. Pa.R.A.P 

Since the Defendant did not raise any defense to which the identity of the CI would be 

material, the trial court did not have to move to the second prong of the inquiry to determine 

whether the request to disclose the identity of the CI was reasonable. Based on the preliminary 

hearing transcript and the arguments made during the motion hearing, the trial court was well 

within its discretion to deny the Defendant's Motion to Disclose Identify of Informant. 

ln this case, the Defendant failed to raise any defense to which the identity of the CI 

would be material and the trial court found that one did not exist. 

The court should consider the following factors: the crime charged, the possible 

defenses, the possible significance of the informant's testimony, and any other relevant factors. 

Commonwealth v. Marsh at 262 citing Commonwealth v. Carter, 427 Pa. 53, 233, A.2d 284, 287 

(t 967). 

that the identity of the confidential informant is material to the defense is the trial court required 

to exercise its discretion to determine whether the information should be revealed by balancing 

relevant factors, which are initially weighted toward the Commonwealth." Pa.R.C.P. 

§573(B)(2)(a)(i); Commonwealth v. Marsh at 261 citing Roebuck, supra at 1283; Bing, supra at 

58; Commonwealth v. Herron, 475 Pa. 461, 380 A.2d 1228 (1977). 

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Commonwealth v. Kirkland, 2003 PA Super 279, 83 l A.2d 607, 11 (Pa.Super.Ct. 2003) citing 

doubt that the defendant possessed a controlled substance with the i ntcnt to deliver it." 

To establish the offense of PWID, the Commonwealth "must prove beyond a reasonable 

I. Possession with Intent to Deliver 

B. The Commonwealth Presented Sufficient Evidence to Convict the Defendant of 

All Charges. 

trial court denied the Defendant's Motion to Disclose the Identity oflnformant. 

were called to testify at trial, the Defendant's constitutional rights were not violated when the 

opportunity to cross-examine each of those police officers, as well as all of the other witness who 

witnesses who testified against the Defendant. Since the Defendant had a full and fair 

statements into evidence. It was the Philadelphia Police Officers, and not the CI, who were the 

In this case, the Commonwealth neither called the Cl as a witness nor introduced his 

(internal citations omitted). 

(2002) citing Ohio v. Roberts, 448 U.S. 56, 64, 100 S.Ct. 2531, 2537, 65 L.Ed.2d 597 (1980) 

right of cross-examination. Commonwealth v. Robins, 571 Pa. 248, 258-59, 812 A.2d 514, 520 

preference for face-to-face confrontation at trial, and that the primary interest protected is the 

In general, the Supreme Court has indicated that the Confrontation Clause reflects a 

3145, 11 l L.Ed.2d 638 ( l 990)(citing U.S. Const. amend. VI)(emphasis added). 

confronted with the witnesses against him." Idaho v. Wright, 497 U.S. 805, 813, 110 S.Ct. 3139, 

Amendment, provides that in "all criminal prosecutions, the accused shall enjoy the right ... to be 

Amendment, applicable to the stales through the due process clause of the Fourteenth 

Moreover, this claim is without merit. The Confrontation Clause of the Sixth 

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substance - from the Defendant. 35 P.S. §780-102(b), 35 P.S. §780-104(] )(ii)(lO). 

the CI gave money to the Defendant in order to purchase a large quantity of heroin - a controlled 

separate occasions provide more than enough circumstantial evidence for the jury to infer that 

physically observe the exchange of money for drugs, their combined observations on four 

(N.T. 5/1/13 p.60-97; N.T. 5/2/13 p. 179-187.) While the police officers did not actually 

ensure that he did not have any money or contraband on him to compromise the investigation. 

5/2/l 3 p. 179-187.) Each time, the CI was thoroughly searched before and after the transaction to 

observed the CI exit the vehicle with large quantities of heroin. (N.T. 5/1/13 p.60-97., N.T. 

The officers also observed the CI enter the Lincoln with pre-recorded buy money, and 

Longshore't with no one else in the car. (N.T. 5/1/13 p.60-97., N.T. 5/2/13 p. 179-187.) 

observed that it was the Defendant who was driving a Lincoln to the corner of i'Horrccks and 

Defendant of PWID. On four separate occasions Officer Gramlich and Detective Geroge 

In this case, there is no question that the jury heard sufficient evidence to convict the 

. 

87 (1980). 

A.2d 132, 134-35 (1983) citing Commonwealth v. Bentley, 276 Pa.Super, 41, 46, 419 A.2d 85, 

actually possessed the drugs or contraband. Commonwealth v. Macolino, 503 Pa.201, 206, 469 

defendant." Id. Further, circumstantial evidence may be used to establish that the defendant 

including the "particular method of packaging, the form of the drug, and the behavior of the 

controlled substance from an examination of the facts and circumstances surrounding the case, 

A.2d 1181 (Pa.Super.2000). The jury may infer that the defendant intended to deliver a 

Commonwealth v. Conaway, 791 A.2d 359 (Pa.Super.2002); Commonwealth v. Aguado, 760 

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II 

Facilitation has been defined as "any use of a communication facility that makes easier the 

Connnonwealth v. Moss, 2004 PA Super 224, 852 A.2d 3 74, 382 (Pa. Super. Cl. 2004). 

. 

recklessly facilitated an underlying felony; and (3) the underlying felony occurred. 

intentionally used a communication facility; (2) Appellants knowingly, intentionally or 

Commonwealth must prove beyond a reasonable doubt that; (I) Appellants knowingly and 

To sustain a conviction for Criminal Use of a Communication Facility, the 

3. Criminal Use of a Communication Facility 

possessed that heroin. 35 P.S. §780-102(b), 35 P.S. §780-104(1)(ii)(10). 

heroin - a controlled substance - from the Defendant and that the Defendant intentionally 

The jury most certainly had sufficient facts on which to infer that the CI obtained the 

97; N.T. 5/2/13 p. 179-187.) 

CI upon return, and recovered large quantities of bundled heroin from the CI. (N.T. 5/1/13 p.60- 

was solely occupied by the Defendant, observed the CI during the entire transaction, searched the 

searched the Ct, provided the CI with pre-recorded buy money, sent the CI to the Lincoln that 

In this case, the jury heard evidence that on four separate occasions Officer Gramlich 

the drugs or contraband. Commonwealth v. Macolino, supra. 

discussed, circumstantial evidence may be used to establish that tbe defendant actually possessed 

possess[ed] a controlled or counterfeit substance." 35 P.S. §780-113(16). As previously 

substance, the Commonwealth must prove that the Defendant "knowingly or intentionally 

To establish the offense of knowingly and intentionally possessing a controlled 

2. Knowimdy and Intentionally Possessinu a Controlled Substance 

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Additionally, the court is not troubled that the jury found the Defendant not guilty of the 

charges resulting from the first transaction and guilty of the charges resulting from the four 

subsequent transactions. The difference between this first transaction and the other four 

transactions was that for this first transaction, none of the police officers were able to identify the 

Defendant as a driver or passenger in the Lincoln and there was another person in the Lincoln. 

When reviewing a challenge to the weight of the evidence, the verdict may be reversed 

only if it is so contrary to the evidence as to shock one's sense of justice. Commonwealth v. 

Simmons. 541 Pa. 211, 662 A.2d 62 I, 630 (1995). For the reasons stated above, the jury had 

sufficient evidence to convict the Defendant of four counts of PWID, four counts of K&I, and 

one count of Criminal Use of Communication Facility. 

C. The Verdict Was Not Against the Weight of the Evidence 

The jury heard evidence that on four different occasions, the CI called the Defendant, set 

up a meeting with the Defendant, and exchanged pre-recorded buy money for large quantities of 

heroin during that meeting. (N.T. 5/1/13 p.60-97; N.T. 5/2/13 p. 179-187.) Further, when the 

Defendant was arrested on April 20, 2012 after the fifth transaction, Officer Gramlich confirmed 

that the telephone recovered from the Defendant was assigned the same phone number the Cl 

had been calling to set up each transaction. (N.T. 5/l/13 p. 96.) This was sufficient evidence to 

prove that the Defendant's telephone was used to facilitate PWID, a felony, and therefore convict 

the Defendant of Criminal Use of a Communication Facility. 

commission of the underlying felony." Moss at 382 quoting United States v. Davis, 929 f.2d 

554, 559 (10th Cir.1991). 

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13 

Both parties agreed that the Defendant faced a mandatory minimum of five years of 

incarceration due to his prior convictions and the amount of heroin involved in the April 20) 

2012 transaction. (N.T. 7111/13 p. 6-7.) The maximum sentence allotted by statute was fifteen 

years. 35 P.S. §780-l l 3(f)(l). The trial court sentenced the Defendant to a sentence of seven to 

fifteen years of incarceration for the April 20, 2012 PWID conviction, with sentences for the 

remaining convictions running concurrently. (N.T. 7/11/13 p. 21-22.) The trial court's sentence 

Here, in fashioning an appropriate sentence, the Court considered the evidence presented 

during trial, the arguments made by counsel, the Modified Presentence Report, the jury's verdict, 

the Defendant's prior arrests and convictions, the gravity of these offenses, the threat to the 

community, and the Defendant's rehabilitative needs (N.T. 7/11/12 p. 6-9, 12-15> 21-22). 

Further, the court was bound by applicable mandatory minimums. 18 Pa.C.S.A. §7508(c). 

The Superior Cou11 has found that "sentencing is a matter within the sound discretion of 

the sentencing judge and a sentence will not be disturbed by an appellate court absent manifest 

abuse. A sentence must either exceed the statutory limits or be manifestly excessive to constitute 

an abuse of discretion." Commonwealth v. Fries, 362 JJa. Super. I 63, 167, 523 A.2d. 1134, 1135 

(1987), appeal denied, 5 J 5 Pa. 619, 531 A.2d. 427 (1987) citing Commonwealth v, White, 341 

Pa. Super. 261, 491 A.2d. 252 (1985). 

D. The Sentence Was Legal and Reasonable 

The verdicts were not against the weight of the evidence, nor were they shocking, and 

should not be overturned. 

for the other four transactions, the police identified the Defendant as the driver of the Lincoln 

and 110 one else was in the vehicle. 

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14 

ALICE BECK DUBOW, JUDGE 

DATED:~ 

BY THE COURT; 

Based on the foregoing, the Superior Court should affirm the judgment of sentence. 

CONCLUSION 

The sentence was legal and reasonable and should be upheld. 

did not exceed statutory limits, was not manifestly excessive, and was not an abuse of discretion. 

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