J. S12044/18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

JAMES E. GREER, SR., : No. 573 MDA 2017

:

 Appellant :

Appeal from the Judgment of Sentence, February 28, 2017,

in the Court of Common Pleas of York County

Criminal Division at No. CP-67-CR-0007036-2015

BEFORE: LAZARUS, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 10, 2018

James E. Greer, Sr., appeals from the February 28, 2017 judgment of 

sentence entered in the Court of Common Pleas of York County following his 

conviction in a jury trial of possession with intent to deliver a controlled 

substance (heroin) (“PWID”).

1

 The trial court imposed a sentence of 

imprisonment of 111⁄2 to 23 months. We affirm.

The trial court provided the following factual history:

On January 19, 2017, Officer Zachary Pelton took 

the stand and testified that this case involved a 

confidential informant (hereinafter: CI) who received 

payment. At Pelton’s instruction, the CI placed a 

phone call to 717-758-[XXXX], which was a number 

supplied by the CI. Officer Pelton heard a male voice

on the other end of the phone call and, at the 

conclusion of that call, was left with the expectation 

that the CI was to proceed to Li’s Kitchen to 

 

1 35 P.S. § 780-113(a)(30).
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purchase heroin. The CI referred to the caller by the 

street name of “Supreme.” Officer Pelton proceeded 

to search the CI’s pockets and any other places in 

which small objects could be secreted. No strip 

search was performed because, as Officer Pelton 

opined, if the CI were to have reached any place 

intimate then that would have raised red flags for 

the officers. Following the search, the CI was turned 

over to Detective Shaffer and, up to this point, the 

CI was never out of Pelton’s view or control. Shaffer 

provided official funds and transported [sic] the meet 

location. Pelton also proceeded to the location 

where he set up surveillance. Despite having a clear 

and unobstructed view, Officer Pelton never saw the 

CI meet with anyone, nor did he observe the CI; 

however, after the operation, Detective Shaffer 

turned over $20.00 of official funds and 2 yellow 

glassine baggies containing heroin. The parties 

stipulated that, if called to testify, Nicole Blasovich, 

of the Pennsylvania State Bureau of Police Forensic 

Services, would testify that the baggies contained 

heroin. No fingerprinting or DNA analysis was 

performed in this case and the CI and Detective 

Shaffer were not wearing gloves. Furthermore, the 

initiating phone call was not recorded, nor was the 

CI wearing a wire.

On cross-examination, Officer Pelton testified that it 

was his believe [sic] that the CI, an addict, was clean 

at the time of the transaction, but that drug testing 

was not performed to confirm this. Additionally, it 

was established on cross-examination that 

[a]ppellant is not “Supreme[.]” The phone that was 

called by the CI was believed to belong to 

Darryl Austin who is “Supreme.” Finally, during 

cross, Officer Pelton testified that he had made sure 

there was no money on the CI before the CI was 

supplied with official funds.

The next witness to take the stand was 

Detective Andrew Shaffer who testified that his role 

was to transport the CI during the operation. Having 

received the CI from Officer Pelton following the 

search of the CI, Shaffer stated that the CI was 
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never out of his control. Shaffer gave the CI $40.00 

of official funds.[Footnote 2] Shaffer then 

transported the CI to the meet location in Shaffer’s 

vehicle, which was searched prior to the operation. 

Once on scene and the CI was released from 

Shaffer’s vehicle, Shaffer was able to see the CI 

walking the whole way. Detective Shaffer told the 

jury that the CI was observed at all times by himself 

or Detective Nadzom. Detective Shaffer also told the 

jury that he never observed the CI to meet anyone 

else, pick anything up off of the ground, or shift his 

clothing while proceeding to and returning from the 

meeting. Shaffer did not see the actual 

hand-to-hand exchange. However, upon the CI’s 

return to Detective Shaffer, the CI handed over 

2 baggies of suspected heroin and $20.00 of the 

$40.00 that Shaffer had previously given to the CI. 

Finally, Detective Shaffer stated that the CI was 

never out of his control before or after Shaffer 

turned over the suspected heroin to Officer Pelton.

[Footnote 2] Earlier in his testimony, 

Detective Shaffer reported that he had 

given the CI $20.00 of official funds. 

However, at a later point in his 

testimony, Shaffer stated that this was a 

mistake and he had initially given the CI 

$40.00 of official funds.

The third and final Commonwealth witness was 

Detective Scott Nadzom who testified that he 

performed surveillance for this buy-walk. Nadzom 

stated that he had a clear and unobstructed view of 

Li’s Kitchen. Nadzom testified that Shaffer advised 

him over the radio when the CI exited the vehicle 

and, thereafter, Nadzom observed the hand-to-hand 

transaction between the CI and [a]ppellant. 

Detective Nadzom stated that the only person the CI 

had contact with was [a]ppellant. In fact, Nadzom 

never saw the CI meet with anyone else, pick 

anything up, or fuss about his own clothing at any 

point during the operation. According to Nadzom, 

the CI was under constant observation by law 

enforcement. Nadzom then introduced photos he 
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had taken of [a]ppellant on the day in question. 

Nadzom stated that the photos were only taken for 

identification purposes and that he observed the 

hand-to-hand transaction with his naked eyes and 

binoculars. On cross-examination, Nadzom admitted 

that he never saw actual packets passed between 

[a]ppellant and the CI.

Trial court opinion, 9/6/17 at 2-5 (citations to notes of testimony omitted).

The trial court set forth the following procedural history:

On January 20, 2017, a jury of [a]ppellant’s peers 

found him guilty of [PWID]. On February 28, 2017, 

[a]ppellant was sentenced to eleven-and-one-half to 

twenty[-]three months of incarceration plus the 

costs of prosecution. On March 1, 2017, Jennifer M. 

Smith was appointed to represent [a]ppellant for 

purposes of appeal. On March 30, 2017, [a]ppellant

filed a Notice of Appeal of the Sentence of 

February 28, 2017. By way of an Order docketed on 

April 3, 2017, pursuant to the Pennsylvania Rules of 

Appellate Procedure, Rule 1925(b), [a]ppellant was 

directed to file a statement of matters complained of 

on appeal. [] Appellant filed his manifestly untimely 

Statement of Errors Complained of Pursuant to 

1925(b) on June 28, 2017. We nonetheless treat 

this filing as timely in light of Attorney Smith’s 

post-sentencing appointment and the unavailability 

of the trial transcript until the period for a timely 

statement of matters had already lapsed. The 

[c]ourt is all too aware of the difficulty occasioned by 

familiarizing oneself with a case via a cold transcript.

Id. at 1-2 (footnote 1 omitted). The record reflects that the trial court filed 

its Rule 1925(a) opinion on September 6, 2017.

Appellant raises the following issues for our review:

I. Whether the Commonwealth presented 

sufficient evidence to support appellant’s 

delivery of heroin conviction?
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II. Whether the weight of the evidence presented 

by the Commonwealth was sufficient to 

support appellant’s delivery of heroin 

conviction?

Appellant’s brief at 5 (full capitalization omitted).

Appellant first challenges the sufficiency of the evidence to sustain his 

PWID conviction. It is well settled that when challenging the sufficiency of 

the evidence on appeal, that in order to preserve that issue for appeal, an 

appellant’s Rule 1925(b) statement must specify the element or elements 

upon which the evidence was insufficient. Commonwealth v. Gibbs, 981 

A.2d 274, 281 (Pa.Super. 2009), appeal denied, 3 A.3d 670 (Pa. 2010) 

(citation and internal quotation marks omitted).

In his Rule 1925(b) statement, appellant frames his sufficiency 

challenge as follows: “Whether there was sufficient evidence presented at 

trial for a conviction.” (Appellant’s “statement of errors complained of on 

appeal pursuant to 1925(b),” 7/28/17 at 1, ¶ 1 (full capitalization omitted).) 

Because appellant failed to specify the element or elements upon which he 

now claims the evidence was insufficient, appellant waives this issue on 

appeal. See Gibbs, 981 A.2d at 281.
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Nevertheless, we note that a reading of appellant’s eight-sentence

argument on this issue2reveals that appellant challenges the credibility of 

the police officers involved in the undercover operation. (Appellant’s brief at 

9.) In so doing, appellant challenges the weight of the evidence, not its 

sufficiency. See, e.g., Commonwealth v. Wilson, 825 A.2d 710, 713-714 

(Pa.Super. 2003) (a review of the sufficiency of the evidence does not 

include a credibility assessment; such a claim goes to the weight of the 

evidence); Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa.Super. 

1997) (the fact-finder makes credibility determinations, and challenges to 

those determinations go to the weight of the evidence, not the sufficiency of 

the evidence).

In his second issue on appeal, appellant raises a weight of the 

evidence claim. In order to raise a weight claim on appeal, however, 

Pennsylvania Rule of Criminal Procedure 607 requires an appellant to raise 

the claim with the trial judge in a motion for a new trial “(1) orally, on the 

record, at any time before sentencing; (2) by written motion at any time 

 

2 We further note that appellant failed to provide any record citations to 

support his claim. Notwithstanding appellant’s failure to preserve this issue 

in his Rule 1925(b) statement which resulted in waiver of the issue on 

appeal, appellant’s failure to provide record citations to support his claim 

would also result in waiver. See Pa.R.A.P. 2119(c); see also 

Commonwealth v. Einhorn, 911 A.2d 960, 970 (Pa.Super. 2006) 

(reiterating that an appellate brief must provide record citations and 

citations to any relevant supporting authority, that this court will not become 

the counsel for an appellant, and that this court will not consider issues that 

are not fully developed in the brief (citation omitted)).
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before sentencing; or (3) in a post-sentence motion.” Pa.R.Crim.P. 607(A). 

“The purpose of this rule is to make it clear that a challenge to the weight of 

the evidence must be raised with the trial judge or it will be waived.” 

Pa.R.Crim.P. 607, comment.

Our review of the certified record before us reveals that appellant 

failed to raise his weight claim with the trial court in a motion for a new trial 

orally, on the record, prior to sentencing; by written motion prior to 

sentencing; or in a post-sentence motion. Accordingly, appellant waives his 

weight claim on appeal.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/10/2018