J-S53006-14 

2014 PA Super 236 

*Retired Senior Judge assigned to the Superior Court. 

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF 

: PENNSYLVANIA 

 Appellee :

:

 v. :

:

JERMAINE SAMUEL, :

:

 Appellant : No. 1546 WDA 2013 

Appeal from the Judgment of Sentence April 12, 2013, 

Court of Common Pleas, Blair County, 

Criminal Division at No(s): CP-07-CR-0000667-2012 

and CP-07-CR-0002674-2011 

BEFORE: DONOHUE, OLSON and PLATT*, JJ. 

OPINION BY DONOHUE, J.: FILED OCTOBER 17, 2014 

 Jermaine Samuel (“Samuel”) appeals from the judgment of sentence 

entered following his convictions of numerous counts of possession with 

intent to deliver, criminal use of a communication facility, dealing in unlawful 

proceeds and corrupt organizations.1 He raises eight issues in this appeal. 

Following our review, we conclude that four of these issues have been 

waived, one is moot and the rest are without merit. Accordingly, we affirm. 

 Samuel’s convictions are the result of an investigation by the Office of 

the Attorney General of Pennsylvania into an operation in which Samuel and 

multiple other people conspired to bring large quantities of cocaine from 

Baltimore to Pennsylvania for distribution in Altoona. The investigation 

included the use of confidential informants and multiple means of electronic 

 

1

 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 7512(a), 5111, 911(b)(3). 
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surveillance, including body wires on the confidential informants and 

wiretaps and pen registers on at least four telephone numbers. The 

investigation resulted in 12 arrests. During his week-long trial, the evidence 

established that Samuel coordinated and received quantities of cocaine from 

Maryland, warehoused them in an office above a bar in Altoona, cut the 

drugs and repackaged them for sale to particular street-level dealers. 

Samuel was convicted of the crimes listed above and sentenced to an 

aggregate term of 461⁄2 to 103 years of incarceration. On April 22, 2013, 

Samuel filed a timely post-sentence motion. The trial court did not rule on 

Samuel’s post-sentence motion within 120 days of the date it was filed, and 

so it was effectively denied by operation of law.2 This appeal follows.3 

 Samuel raises the following issues for our review, which we have 

reordered for purposes of our discussion: 

1. Whether the trial court erred in denying Samuel’s 

[o]mnibus [p]re-[t]rial [m]otion, which sought the 

suppression and exclusion of the contents of all 

wire, electronic, and/or oral communications, and 

evidence derived therefrom, relative to the non-

 

2

 The order denying Samuel’s post-trial motion was filed on December 3, 

2013, after Samuel filed his notice of appeal to this Court. This is improper, 

and as such, we could quash Samuel’s appeal. See Commonwealth v. 

Borrero, 692 A.2d 158 (Pa. Super. 1997) (holding that the entry of an order 

denying timely-filed post-sentence motions is a prerequisite to our exercise 

of our jurisdiction). However, the trial court eventually entered the proper 

order. In this instance, we will deem done what should have been done and 

will not quash the appeal for this reason. See Pa.R.A.P. 902. 

3

 The trial court did not order Samuel to file a Pa.R.A.P. 1925(b) statement 

of errors complained of on appeal. 
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consensual interceptions of the telephone 

numbers the Commonwealth associated with 

Samuel? 

2. Whether there was sufficient evidence to sustain 

the jury’s finding of guilt with respect to each 

count of which Samuel was convicted? 

3. Whether the trial court erred in permitting the 

Commonwealth to present cumulative, prejudicial, 

and irrelevant evidence of ‘historical controlled 

purchases’ in which Samuel had no involvement? 

4. Whether the trial court erred in failing to grant 

Samuel’s continuing objection that the 

Commonwealth failed to properly authenticate the 

text messages allegedly authored by Samuel? 

5. Whether the trial court erred in denying Samuel’s 

[p]etition for [r]elease on [n]ominal [b]ail? 

6. Whether the trial court erred in its discretionary 

aspects of sentencing; in particular, whether the 

trial court erred in failing to consider certain 

mitigating factors, and whether the trial court 

abused its discretion in running all periods of 

incarceration consecutive [sic], resulting in what 

Samuel submits is a life sentence of 

incarceration? 

7. Whether the trial court erred in concluding at the 

time of sentencing that the Commonwealth 

preponderantly proved the weights of the 

controlled substances attributable to the following

counts: 1, 5, 8, and 9 of CR 667-2012; and count 

1 of CR 2674-2011; and whether the trial court 

engaged in an improper procedure in determining 

that the Commonwealth established the requisite 

weights of controlled substances, thus implicating 

the legality of Samuel's sentence? 

8. Whether the trial court erred in allowing the 

Commonwealth to amend the criminal information 
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filed against Samuel, which had the effect of 

back-dating Samuel’s alleged criminal 

involvement in this matter, where the trial court 

erroneously relied upon the decisions of another 

trial court judge relative to other defendants in 

the overall investigation? 

Appellant’s Brief at 6-7. 

 We first consider Samuel’s challenge to the trial court’s denial of his 

suppression motion. Samuel argues that the Commonwealth’s applications 

for wiretaps on two telephone numbers were “impermissibly ‘successive’ and 

non-specific with regard to Samuel in that [they] were not based upon ‘new 

evidence’ different from and in addition to information in support of previous 

Authorization Orders;” that “the [a]pplications for the telephone numbers 

associated with Samuel were [not] particularized with respect to Samuel;” 

and that “the Commonwealth failed to show that it employed reasonable 

investigative techniques specific to Samuel.” Id. at 15. Despite these 

allegations, Samuel fails to develop his argument by identifying the 

particular wiretap applications upon which he bases this claim, much less 

where in the record they can be located. See Pa.R.A.P. 2119(c) (“If 

reference is made to ... any [] matter appearing of record, the argument 

must set forth ... a reference to the place in the record where the matter 

referred to appears.”). He also fails to discuss meaningful authority in 
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support of his claims.4 Instead, he “urges this Court to engage in a 

comparative analysis of the facts contained in the applications” to “disclose[] 

the glaring similarities of the evidence utilized in all of the applications[.]” 

Id. at 16. 

We decline Samuel’s invitation. The Rules of Appellate Procedure 

require that appellants adequately develop each issue raised with discussion 

of pertinent facts and pertinent authority. See Pa.R.A.P. 2119. It is not this 

Court’s responsibility to comb through the record seeking the factual 

underpinnings of an appellant’s claim. Commonwealth v. Mulholland, 

702 A.2d 1027, 1034 n.5 (Pa. 1997). Further, this Court will not become 

counsel for an appellant and develop arguments on an appellant’s behalf. 

Commonwealth v. Gould, 912 A.2d 869, 873 (Pa. Super. 2006). It was 

Samuel’s responsibility to provide an adequately developed argument by 

identifying the factual bases of his claim and providing citation to and 

discussion of relevant authority in relation to those facts. Because he has 

failed to do so, we find this issue waived. 

 Samuel’s second claim purports to challenge the sufficiency of the 

evidence “with respect to each count of which Samuel was convicted.” 

 

4

 Samuel cites three decisions from the Federal Court of Appeals for the 

Ninth Circuit, all of which involve federal wiretap procedure. See Appellant’s 

Brief at 14-15. Pennsylvania has its own law governing wiretap procedure, 

the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S.A. § 5701 

et seq. Samuel does not provide any law regarding Pennsylvania’s wiretap 

statute or explain how or to what extent Pennsylvania’s wiretap law overlaps 

with federal wiretap law. 
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Appellant’s Brief at 22. Samuel has not specified the elements of the crimes 

that he believes Commonwealth failed to adequately establish. In order to 

develop a claim challenging the sufficiency of the evidence properly, an 

appellant must specifically discuss the elements of the crime and identify 

those which he alleges the Commonwealth failed to prove. Commonwealth 

v. McDonald, 17 A.3d 1282, 1286 (Pa. Super. 2011). Samuel has failed to 

do so, and so he has waived this claim for lack of development. See id. 

 Furthermore, we note that the only argument that Samuel presents in 

support of his sufficiency claim challenges the Commonwealth’s evidence as 

incredible. See Appellant’s Brief at 23-24. This argument attacks the 

weight, rather than the sufficiency, of the evidence. Commonwealth v. 

Feucht, 955 A.2d at 337, 382 (Pa. Super. 2008). Accordingly, such an 

argument is not relevant to a sufficiency of the evidence claim. We also 

note that Samuel did not raise a claim challenging the weight of the 

evidence in his statement of questions involved on appeal; as such, we do 

not address the merits of this argument. See Pa.R.A.P. 2116(a) (“No 

question will be considered unless it is stated in the statement of questions 

involved or is fairly suggested thereby.”). 

 Next, Samuel argues that the trial court erred by allowing the 

Commonwealth to present what he calls “cumulative, prejudicial, and 

irrelevant evidence of ‘historical controlled purchases’” in which Samuel had 

no involvement. Appellant’s Brief at 26. However, Samuel fails to identify 
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the particular evidence to which he is objecting in any manner. He does not 

identify what kind of evidence this was (e.g., testimonial or photographic) or 

in what manner, or through what witness or witnesses, the contested 

evidence was admitted. The only case law that Samuel cites in support of 

this claim is the standard of review for claims challenging the admission of 

evidence and the well-known principle that relevant evidence may still be 

excluded if the potential for prejudice outweighs its probative value. 

Appellant’s Brief at 26-27. Again, we will not comb the record for the facts 

in support of Samuel’s claim and we will not develop arguments on his 

behalf. This issue is waived. Mulholland, 702 A.2d at 1034 n.5; Gould, 

912 A.2d at 873. 

 We find the next issue waived for the same reason. Samuel states 

that the trial court erred by failing to exclude text messages allegedly 

written by him because the Commonwealth failed to properly authenticate 

them. Appellant’s Brief at 28. He states that “with regard to each text 

message, the Commonwealth failed to articulate or provide independent 

substantiation relative to its assertion ... that the text messages played 

during trial were, in fact, authored by Samuel.” Appellant’s Brief at 28 

(emphasis added). However, Samuel does not identify where in the record 

the admission of these text messages occurred or what the content of the 

text messages was. He does not discuss any relevant authority or otherwise 
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develop his claim.5 This claim is woefully underdeveloped and therefore 

waived. 

 Samuel’s fifth claim of error is that the trial court erred by denying his 

request for release on nominal bail pursuant to Pa.R.E. 600(E). Appellant’s 

Brief at 19. However, because Samuel has been convicted and is 

incarcerated, this claim is moot. Commonwealth v. Sloan, 907 A.2d 460, 

464-65 (Pa. 2006) (holding that challenge to denial of request for release on 

nominal bail is moot where defendant is no longer in pre-trial detention). As 

such, we need not discuss the merits thereof. 

 The sixth issue Samuel raises relates to the discretionary aspects of 

his sentence. An appellant is not entitled to the review of challenges to the 

discretionary aspects of a sentence as of right. Commonwealth v. Griffin, 

65 A.3d 932, 935 (Pa. Super. 2013). Rather, an appellant challenging the 

discretionary aspects of his sentence must invoke this Court's jurisdiction. 

We determine whether the appellant has invoked our jurisdiction by 

considering the following four factors: 

(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, Pa.R.A.P. 2119(f); and (4) whether 

there is a substantial question that the sentence 

 

5

 The entirety of Samuel’s argument on this issue is two brief paragraphs, 

totaling 14 lines. See Appellant’s Brief at 27-28. 
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appealed from is not appropriate under the 

Sentencing Code, 42 Pa.C.S.A. § 9781(b). 

Id.

 Samuel timely filed his notice of appeal, preserved this issue in his 

post-sentence motion, and included a statement pursuant to Pa.R.A.P. 

2119(f) in his appellate brief. In his Rule 2119(f) statement, Samuel 

contends that the trial court erred by running his sentences consecutively, 

thereby resulting in what is effectively a life sentence of incarceration. He 

further contends that the trial court erred by “disregarding all mitigating 

factors presented ... at the time of sentencing[.]” Appellant’s Brief at 29, 31. 

Essentially, Samuel claims that his sentence is excessive and that the trial 

court erred by not considering mitigating factors. “[T]his Court has held that 

an excessive sentence claim—in conjunction with an assertion that the court 

failed to consider mitigating factors—raises a substantial question.” 

Commonwealth v. Raven, __ A.3d __, 2014 WL 3907103 at *6 (Pa. 

Super. August 12, 2014). Thus, we consider the merits of this claim. 

 As we do, we are mindful that “[s]entencing is a matter vested in the 

sound discretion of the sentencing judge, and a sentence will not be 

disturbed on appeal absent a manifest abuse of discretion.” Id. To be 

entitled to relief, “the appellant must establish, by reference to the record, 

that the sentencing court ignored or misapplied the law, exercised its 
J-S53006-14 

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judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a 

manifestly unreasonable decision.” Id. Our law further provides that 

[t]he 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 

(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. 

42 Pa.C.S.A. § 9781(c). 

 The only argument Samuel puts forth is that when imposing his 

sentence, the trial court disregarded certain mitigating factors, including his 

age; his lack of a history of violent crime; his cooperation and respect for 

the trial court throughout the proceedings; and that he is the father of two 

children. Appellant’s Brief at 31. Ostensibly, Samuel’s argument is that had 

the trial court considered the mitigating factors, it would not have imposed 

this excessive sentence. 

 The record reveals that the trial court did consider Samuel’s argument 

that he has no history of violent offenses, as it referenced this in its 
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comments during the sentencing hearing. N.T., 4/12/13, at 76. The trial 

court does not specifically address the other mitigating factors raised by 

Samuel; however, Samuel cites no authority for the proposition that a trial 

court must address all mitigating circumstances presented before it, and we 

know of none. To the contrary, a trial court is only required to state the 

reasons for the sentence it imposes on the record, see 42 Pa.C.S.A. 

§ 9781(b), and the record reveals that the trial court adequately explained 

the reasons for the sentence it imposed. See N.T., 4/12/13, at 74-76. 

Samuel’s argument that the trial court abused its discretion is therefore 

unavailing. 

 Next, we address Samuel’s claim challenging the legality of his 

sentence. At the time of Samuel’s trial and sentencing, 18 Pa.C.S.A. § 7508 

provided for mandatory minimum sentences for drug trafficking convictions, 

and the length of the mandatory minimum depended on the amount of the 

drug involved.6 18 Pa.C.S.A § 7508. At the sentencing hearing, the 

Commonwealth presented evidence, via the testimony of multiple law 

enforcement officers, regarding the amount of cocaine Samuel possessed. 

Samuel argues first that the Commonwealth failed to adequately establish 

that he possessed the requisite amount of cocaine such that the mandatory 

minimum sentence would apply for four of the counts of which he was 

 

6

 This statute was later ruled unconstitutional by this Court’s decision in 

Commonwealth v. Watley, 81 A.3d 108 (Pa. Super. 2013). 
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convicted. Appellant’s Brief at 24-25. We note that Samuel has once again 

failed to support this argument (which extends for a total of only eight and a 

half lines of text) with citation to the record or discussion of the relevant 

facts or law. See id. Accordingly, we find this aspect of Samuel’s claim 

waived. 

 Samuel also argues that pursuant to this Court’s decision in 

Commonwealth v. Munday, 78 A.3d 661 (Pa. Super. 2013), it was for the 

jury, and not the trial court, to determine whether he possessed enough 

cocaine so as to implicate the mandatory minimum sentence on each count. 

Appellant’s Brief at 25. As a general matter, Samuel is correct; any fact that 

could increase the proscribed range of penalties to which a defendant is 

exposed must be found by a jury. Munday, 78 A.3d at 664-656. The 

record is clear, however, that the trial court did not sentence him in 

accordance with mandatory minimum sentence provisions or any other 

enhancement that required a factual predicate before application. Rather, 

the record reveals that the trial court sentenced Samuel within the standard 

guideline ranges, which were substantially elevated because of Samuel’s 

prior record score of five. N.T., 4/12/13, at 74. Thus, although it was not 

for the trial court to make the determination as to how much cocaine Samuel 

possessed for purposes of determining whether mandatory minimum 

sentencing provisions applied, this error had no impact on Samuel’s 

sentence. Samuel’s challenge to the legality of his sentence fails. 
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 Finally, we arrive at Samuel’s last claim, in which he argues that the 

trial court erred by allowing the Commonwealth to amend the criminal 

informations filed against him. Samuel argues that the trial court erred in 

permitting the amendment, which had the effect of backdating his 

involvement in the cocaine distribution ring, without a hearing, and that 

doing so caused him prejudice. Appellant’s Brief at 18. 

 Rule of Criminal Procedure 564 governs the amendment of a criminal 

information.7 The purpose of this rule is to “ensure that a defendant is fully 

apprised of the charges, and to avoid prejudice by prohibiting the last 

minute addition of alleged criminal acts of which the defendant is 

uninformed.” Commonwealth v. Page, 965 A.2d 1212, 1223-24 (Pa. 

Super. 2009). When a challenge is raised to an amended information, the 

salient inquiry is 

[w]hether the crimes specified in the original ... 

information involve the same basic elements and 

evolved out of the same factual situation as the 

crimes specified in the amended ... information. If 

so, then the defendant is deemed to have been 

placed on notice regarding his alleged criminal 

conduct. If, however, the amended provision alleges

a different set of events, or defenses to the amended 

crime are materially different from the elements or

defenses to the crime originally charged, such that

 

7

 “The court may allow an information to be amended when there is a defect 

in form, the description of the offense(s), the description of any person or 

any property, or the date charged, provided the information as amended 

does not charge an additional or different offense. Upon amendment, the 

court may grant such postponement of trial or other relief as is necessary in 

the interests of justice.” Pa.R.Crim.P. 564. 
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the defendant would be prejudiced by the change, 

then the amendment is not permitted. 

Id. at 1224. In this case, the original information alleged a period of 

criminal activity from October 5, 2011 to November 4, 2011, the date of 

Samuel’s arrest. On February 28, 2012, as a result of information learned 

from the Grand Jury investigation that commenced following Samuel’s 

arrest, a second set of charges relating to the same time period was filed 

against Samuel. Subsequently, based upon further information obtained 

from the Grand Jury investigation, the Commonwealth sought to amend the 

informations filed against Samuel (and his cohorts) only for the purpose of 

extending the period of their criminal activities back to January 1, 2011. 

See Motion to Amend Criminal Information, 7/12/12, at 7-11. The crimes 

charged in the amended informations were identical to the crimes charged in 

the original informations. The charges involved the same pattern of events 

upon which the charges in the original informations were based; the 

amendment simply extended the period of time in which the events 

occurred. As such, there was no “last minute addition of alleged criminal 

acts” of which Samuel was not informed. Page, 965 A.2d at 1223-24. The 

amendment did not run afoul of Rule of Criminal Procedure 564. 

 Samuel argues that he was prejudiced because the amendments 

“back-dated” his involvement in the criminal enterprise. Appellant’s Brief at 

18. Samuel misses the mark with this claim. As made clear by the 
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discussion of the relevant law above, prejudice in this context refers to 

charging a defendant with crimes arising out of a set of events unrelated to 

the conduct that served as the basis for the original charges. See Page, 

965 A.2d at 1224. That did not occur in this case. Samuel also argues that 

the trial court should have held a hearing before ruling on the 

Commonwealth’s motion so that he would be “apprised of the allegations 

resulting from the amendment” and “provided an effective opportunity to 

object to the Commonwealth’s motion.” Appellant’s Brief at 18-19. 

Samuel’s argument is disingenuous; he was served with the 

Commonwealth’s motion on the date it was filed (as well as a subsequent 

motion to clarify the motion to amend); therefore, he was fully apprised of 

the purpose for which the Commonwealth sought amendment. Furthermore, 

Samuel could have objected to the Commonwealth’s motion by filing a 

response thereto; however, he failed to do so at any point before trial 

commenced.8 Samuel is due no relief on this claim. 

 Judgment of sentence affirmed. 

 

8

 The Commonwealth filed its motion to amend on July 12, 2012. Trial did 

not commence until January 22, 2013. 
J-S53006-14 

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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 10/17/2014