J-S47006-18

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ZACHARY ZANE MOORE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1278 WDA 2017

Appeal from the Judgment of Sentence May 25, 2017

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

CP-07-CR-0000807-2016

BEFORE: OLSON, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.: FILED OCTOBER 19, 2018

Appellant, Zachary Zane Moore, appeals from the judgment of sentence 

entered on May 25, 2017, as made final by the order memorializing the 

withdrawal of Appellant’s post-sentence motion on August 25, 2017. We 

affirm.

The Commonwealth charged Appellant with drug delivery resulting in 

death, possession of a controlled substance with the intent to deliver (PWID), 

criminal use of a communication facility, and possession of a controlled 

substance.1 See Commonwealth’s Amended Information, 1/27/17, at 1-2. 

On February 6, 2017, Appellant proceeded to a jury trial on the charges.

During trial, the Commonwealth presented the testimony of Desirea 

Champeno. Ms. Champeno testified that, in December 2015, she was dating 

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1 18 Pa.C.S.A. § 2506(a), 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 7512(a), 

and 35 P.S. § 780-113(a)(16), respectively.
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Jason Weyandt; Mr. Weyandt is the father of the decedent, Jacob Wills 

(hereinafter “the Decedent”). Ms. Champeno testified that, on the night of 

December 14, 2015, the Decedent had an argument with his girlfriend; the 

Decedent asked Ms. Champeno to pick him up in her car and let him sleep 

over her house for the night. N.T. Trial, 2/6/17, at 93-94. Ms. Champeno 

acceded and picked the Decedent up in her vehicle around midnight. Id.

Ms. Champeno testified that, when the Decedent got into her vehicle, 

she could tell that the Decedent “was on some type of substance” and that he 

was “high.” Id. at 96. The Decedent asked Ms. Champeno to let him use her 

cell phone. Ms. Champeno gave him her phone and listened as he called 

Appellant. Id. at 97. At the time, Ms. Champeno knew the Decedent “had a 

problem with heroin” and knew he was calling Appellant “to get more heroin.” 

Id. at 75 and 98. Moreover, at trial, the Commonwealth presented a text 

from Appellant’s phone to Ms. Champeno’s phone. The text declared: “you 

need bun 75?” Id. at 98. Ms. Champeno testified that this text meant that 

Appellant was willing to sell the Decedent “a bundle of heroin for . . . $75.” 

Id. at 99.

Ms. Champeno testified that she watched the Decedent organize the 

money in her car. The Decedent, however, started losing consciousness and, 

at this point, Appellant telephoned. Ms. Champeno testified that she answered 

the phone and spoke to Appellant. She testified:

[Appellant] wanted to talk to [the Decedent] but I said I can’t 

get him up and he was scaring me and I said he’s nodding 

out, which means he’s, you know, losing consciousness and 
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[Appellant] said – he asked where I was. I told him at the 

gas pumps at Sheetz and he said hold on, I’ll be right there.

Id. at 102.

As Ms. Champeno testified, Appellant arrived shortly thereafter and 

helped her with “making sure [the Decedent] was all right and breathing and 

stuff.” Id. at 103. She testified:

[Appellant] took – I didn’t know [the Decedent] when he was 

passed out he had the money in between his legs on his lap 

and [Appellant] took the money out of his lap and then took 

a little scale on the dash of the truck and started weighing 

out the heroin right there on the dash of the truck. 

. . .

So then he asked me for something to put it in. . . . I had 

some sandwich bags because it was a work truck, you know, 

behind the seat so I got him a sandwich bag to put it in and 

then he stuck it in the sandwich bag and I believe he laid it 

on [the Decedent’s] lap.

Id. at 103-104. Ms. Champeno then placed the heroin inside of her purse. 

Id. at 104.

After the transaction, Ms. Champeno drove the Decedent to her house

and helped the Decedent walk inside; the Decedent woke up, spoke with Ms. 

Champeno, and began to “sober up.” Id. at 116. At approximately 1:23 a.m., 

the Decedent called Ms. Champeno and asked that she give him the heroin 

that he purchased from Appellant. Id. at 116 and 118. Ms. Champeno gave 

him the heroin from her purse. Id. at 117.
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Ms. Champeno testified that she checked on the Decedent throughout 

the night and early morning and, at all times, the Decedent was speaking to 

his girlfriend on his cell phone. Id. at 118-119. As Ms. Champeno testified:

between 9:00 and 9:30 [on the morning of December 15, 

2015, the Decedent came] in and woke me up . . . and he 

told me he just did the whole bag, like everything he had 

gotten off [Appellant]. . . . He’s like yeah, he did all of it at 

once, you know, and I was like, you know, why would you do 

that and he was worried. 

Id. at 119. 

Ms. Champeno testified that she told the Decedent to sit down, so that 

she could “go to the bathroom and get ready because [she] was going to take 

him in” to group therapy. Id. at 120-121. However, when she got out of the 

bathroom, she noticed that the Decedent was not breathing. Id. at 121-122. 

She called 911 and emergency responders attempted to resuscitate the 

Decedent. Id. at 122-123. They could not do so and the Decedent was later 

pronounced dead at the hospital. Id. at 209. A later autopsy revealed that 

the Decedent’s death was caused by “a drug overdose from heroin.” Id. at 

211.

The jury found Appellant guilty of PWID, possession of a controlled 

substance, and criminal use of a communication facility; however, the jury 

found Appellant not guilty of drug delivery resulting in death. N.T. Trial, 

2/8/17, at 59. On May 25, 2017, the trial court sentenced Appellant to serve 

a term of 48 to 96 months in prison for the PWID conviction and to serve a 

consecutive term of 24 to 48 months in prison for the criminal use of a 
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communication facility conviction, for an aggregate term of six to 12 years in 

prison. N.T. Sentencing, 5/25/17, at 25; Sentencing Order, 5/25/17, at 2-3. 

Both terms of imprisonment exceed the aggravated range of the sentencing 

guidelines. N.T. Sentencing, 5/25/17, at 25; Sentencing Order, 5/25/17, at 

1.

On June 2, 2017, Appellant filed a timely post-sentence motion, where 

he claimed that “[t]he total sentence of [six] to 12 years is excessive and 

disproportionate to [Appellant’s] two crimes, which were part of one criminal 

episode; and therefore the sentence is unreasonable.” Appellant’s Motion to 

Reconsider Sentence, 6/2/17, at 1. Appellant requested that the trial court 

vacate his sentence and “resentence him in compliance with Pennsylvania 

sentencing norms.” Id. at 2 (some internal capitalization omitted). The trial 

court denied this motion on June 6, 2017, without holding a hearing. Trial 

Court Order, 6/6/17, at 1.

Further, on Monday, June 5, 2017, Appellant filed a timely

“Supplemental Post-Sentence Motion to Reconsider Sentence” (hereinafter 

“Supplemental Post-Sentence Motion”), where he claimed that the trial court 

sentenced him under the mistaken belief that his prior record score was higher 

than it really was. Appellant’s Supplemental Post-Sentence Motion, 6/5/17, 

at 1-2. In response, the trial court issued a rule upon the Commonwealth to 

show cause as to why Appellant was not entitled to relief on his Supplemental 

Post-Sentence Motion. Trial Court Order, 6/12/17, at 1. However, prior to 

the hearing on the matter, Appellant withdrew his Supplemental Post-
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Sentence Motion. The trial court’s subsequent order, which memorialized 

Appellant’s withdrawal, declared:

The issue is that the prior record score, which the [trial] court 

relied upon in the sentencing guidelines, as prepared by the 

Commonwealth, was in fact correct; and upon confirmation 

of that, [Appellant] withdraws with prejudice his 

[Supplemental Post-Sentence Motion].

Trial Court Order, 8/25/17, at 1 (some internal capitalization omitted).

Appellant filed a timely notice of appeal from the trial court’s order that

memorialized the withdrawal of his Supplemental Post-Sentence Motion. See

Pa.R.Crim.P. 720(A)(2)(c) (“If the defendant files a timely post-sentence 

motion, the notice of appeal shall be filed . . . within 30 days of the entry of 

the order memorializing the withdrawal in cases in which the defendant 

withdraws the motion”). Appellant raises two claims on appeal:

[1.] Whether the evidence at trial was insufficient to prove 

that [Appellant] possessed a controlled substance when no 

controlled substance could be seen on the surveillance video?

[2.] Whether the [trial] court abused its discretion in 

sentencing when the sentence exceeded the aggravated 

range of the sentencing guidelines?

Appellant’s Brief at 5 (some internal capitalization omitted).

Appellant first claims that the evidence was insufficient to support his 

PWID conviction. We review Appellant’s sufficiency of the evidence claim 

under the following standard:

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 
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element of the crime beyond a reasonable doubt. In applying 

the above test, we may not weigh the evidence and substitute 

our judgment for [that of] 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 witnesses 

and the weight of the evidence produced, is free to believe 

all, part or none of the evidence. 

Commonwealth v. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) (en 

banc), quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-806 (Pa. 

Super. 2008).

According to Appellant, the evidence was insufficient to support his 

PWID conviction because “it cannot be seen in the [Sheetz surveillance] video 

that he ever possessed the drugs in question.” Appellant’s Brief at 11. 

Although Appellant acknowledges that Ms. Champeno testified that he sold 

the Decedent heroin, Appellant claims that Ms. Champeno’s “testimony alone 

is not sufficient as she is not a credible witness.” Id. 

Obviously, this claim fails because Ms. Champeno testified that 

Appellant sold the Decedent heroin and, in this appeal, we must view Ms. 

Champeno’s testimony in the light most favorable to the Commonwealth. 

Therefore, since Ms. Champeno testified that Appellant sold the Decedent 
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heroin on the night in question, the evidence is sufficient to support 

Appellant’s PWID conviction.

Second, Appellant claims that the trial court abused its discretion at 

sentencing. Appellant’s Brief at 12. This claim also fails.

“[S]entencing is a matter vested in the sound discretion of the 

sentencing judge, whose judgment will not be disturbed absent an abuse of 

discretion.” Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 

2001). Moreover, pursuant to statute, Appellant does not have an automatic 

right to appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. 

§ 9781(b). Instead, Appellant must petition this Court for permission to 

appeal the discretionary aspects of his sentence. Id.

As this Court explained:

[t]o reach the merits of a discretionary sentencing issue, we 

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

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

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

sentencing or in a motion to reconsider and modify sentence, 

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

defect, 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, [42 Pa.C.S.A.] 

§ 9781(b).

Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).

As our Supreme Court has held, the determination of whether a 

substantial question exists must be done prior to – and be divorced from –

the determination of the potential merits of an issue. Commonwealth v. 

Tuladziecki, 522 A.2d 17, 19 (Pa. 1987). If it were otherwise, a challenger 
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would “in effect obtain[] an appeal as of right from the discretionary aspects 

of a sentence” – a result that would violate statutory law. Id.

Within Appellant’s Rule 2119(f) statement, Appellant claims that the 

trial court abused its discretion by: 1) “imposing a sentence above the 

aggravated range of the guidelines consecutively to all other sentences 

without stating adequate reasons on the record and without acknowledging 

the court was aware of the guidelines;” 2) “failing to consider necessary 

sentencing factors, including mitigating factors;” and, 3) imposing a sentence 

that, overall, “was excessive.” Appellant’s Brief at 10. However, Appellant 

did not raise the first two claims in his post-sentence motion. See Appellant’s 

Motion to Reconsider Sentence, 6/2/17, at 1 (“[t]he total sentence of [six] to 

12 years is excessive and disproportionate to [Appellant’s] two crimes, which 

were part of one criminal episode; and therefore the sentence is 

unreasonable”). Hence, Appellant’s first two numbered claims are waived, as 

Appellant failed to include the claims in his post-sentence motion. See 

Commonwealth v. Griffin, 65 A.3d 932, 935-936 (Pa. Super. 2013) (“issues 

challenging the discretionary aspects of a sentence must be raised in a postsentence motion or by presenting the claim to the trial court during the 

sentencing proceedings. Absent such efforts, an objection to a discretionary 

aspect of a sentence is waived”) (internal quotations, citations, emphasis, and 

corrections omitted).
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Appellant’s final challenge to the discretionary aspects of his sentence –

that the trial court erred when it imposed a sentence that, overall, was 

excessive – is waived because Appellant did not include any such claim in the 

argument section of his brief. See Appellant’s Brief at 13-14; see 

Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (holding 

that, where the appellant “fails to expand upon [a] claim in the argument 

section of his brief ... the claim is waived”). Moreover, even if the claim were 

not waived, the claim does not raise a substantial question that Appellant’s 

sentence is inappropriate under the Sentencing Code.

Generally, for an appellant to raise a substantial question that his 

sentence is inappropriate under the Sentencing Code, the appellant must 

“advance a colorable argument that the trial judge’s actions were: (1) 

inconsistent with a specific provision of the Sentencing Code; or (2) contrary 

to the fundamental norms which underlie the sentencing process.” 

Commonwealth v. McKiel, 629 A.2d 1012, 1013 (Pa. Super. 1993); 

Commonwealth v. Goggins, 748 A.2d 721, 726 (Pa. Super. 2000) (en 

banc), appeal denied, 759 A.2d 920 (Pa. 2000).

As this Court has held:

the imposition of consecutive rather than concurrent 

sentences lies within the sound discretion of the sentencing 

court. Long standing precedent of this Court recognizes that 

42 Pa.C.S.A. § 9721 affords the sentencing court discretion 

to impose its sentence concurrently or consecutively to other 

sentences being imposed at the same time or to sentences 

already imposed. A challenge to the imposition of 

consecutive rather than concurrent sentences does not 
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present a substantial question regarding the discretionary 

aspects of sentence. We see no reason why a defendant 

should be afforded a volume discount for his crimes by having 

all sentences run concurrently.

However, we have recognized that a sentence can be so

manifestly excessive in extreme circumstances that it may 

create a substantial question. When determining whether a 

substantial question has been raised, we have focused upon 

whether the decision to sentence consecutively raises the 

aggregate sentence to, what appears upon its face to be, an 

excessive level in light of the criminal conduct in this case. 

Commonwealth v. Zirkle, 107 A.3d 127, 133-134 (Pa. Super. 2014) 

(internal quotations, citations, and corrections omitted); see also

Commonwealth v. Radecki, 180 A.3d 441, 468-469 (Pa. Super. 2018) 

(“[w]e consistently have recognized that excessiveness claims premised on 

imposition of consecutive sentences do not raise a substantial question for our 

review”).

In this case, Appellant’s aggregate sentence of six to 12 years’

imprisonment does not “appear[ on] its face to be[] an excessive level in light 

of the criminal conduct in this case.” Id. Therefore, Appellant has not raised 

a substantial question and we may not reach the merits of Appellant’s 

sentencing claim on appeal.

Judgment of sentence affirmed. Jurisdiction relinquished.

Judge McLaughlin joins.

Judge Strassburger files a Concurring Memorandum.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/19/2018