J-S03023-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SHANE AMEE WALDEN

Appellant No. 1603 EDA 2015

Appeal from the Judgment of Sentence March 20, 2015

In the Court of Common Pleas of Northampton County

Criminal Division at No(s): CP-48-CR-0002666-2014

BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and JENKINS, J.

MEMORANDUM BY OTT, J.: FILED FEBRUARY 16, 2016

Shane Amee Walden brings this appeal from the judgment of sentence 

imposed on March 20, 2015, in the Court of Common Pleas of Northampton 

County. A jury found Walden guilty of possession with intent to deliver 

(PWID) cocaine.1 The trial court sentenced Walden to 12 to 24 months’ 

incarceration, followed by five years’ state probation. In this appeal, Walden 

challenges the sufficiency and weight of the evidence. Based upon the 

following, we affirm.

The trial court has summarized the evidence presented at trial, as 

follows:

Detective Jason Hillis (“Detective Hillis”) testified that on 

July 20, 2014, he responded to a call of shots fired in the area of 

____________________________________________

1 35 P.S. § 780-113(a)(30).
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15th and Washington Streets in the City of Easton. Upon arriving 

at the scene, Detective Hillis observed a group of people pointing 

to where [Walden] was sitting by a tree because he suffered a 

gunshot wound and was bleeding. [N.T. at 143:14-20, February 

3, 2015; N.T., at 147:16–148:24]. Detective Hillis then testified 

that after observing [Walden,] he went back to the scene, 

examined the area, and observed a trail of blood starting from 

the porch of a home located at 1505 Washington Street and 

leading in a westerly direction down the sidewalk. [Id. at 

149:22–150:7; 151:5-21]. Along the blood trail, Detective Hillis 

observed a package of suspected cocaine, which he took 

possession of in accordance with the chain of custody. [Id. at 

152:18–154:5]. The blood trail ended at the location where 

[Walden] was laying. [Id. at 151:14-21].

After Detective Hillis and the other responding officers 

secured the crime scene and the suspected cocaine, Sergeant 

Marc Crisafulli (“Sergeant Crisafulli”) went to St. Luke’s Hospital 

in Fountain Hill, to speak with [Walden]. [N.T. at 231:15-24, 

February 4, 2015]. [Walden] reported that he had been shot as 

he sat on the porch of 1505 Washington Street, and he further 

reported that immediately following the shooting, he had 

traveled in a westerly direction, until he collapsed at the location 

where the blood trail ended. However, he refused to disclose the 

identity of his shooter. [Id. at 232:11–233:6]. The testimony 

also revealed that after leaving the hospital, Sergeant Crisafulli 

reviewed the footage from a Police Department camera located 

at 15th and Washington Streets, at which time he was able to 

observe the incident, including [Walden] drop a bag in the same 

location where the cocaine had been collected. [Id. at 233:19–

234:14; 240:23–241:10]. That same footage was shown to the 

jury at trial. 

Finally, the testimony of Brendan McCann (“McCann”), who 

tested the substance, established that the substance weighed 

just over nine (9) grams and it tested positive for cocaine. [N.T. 

at 113:7-18, February 3, 2015; N.T. at 113:22–114:16; 117:9–

119:15; 123:8-17; 119:16-18; 121:22–122:12; 223:20–

225:21; 226:21–227:20]. The jury also heard the testimony of 

Detective Anthony Arredondo (“Detective Arredondo”), who 

explained that possession with intent to deliver a controlled 

substance is generally differentiated from simple possession by 

circumstances including the quantity and weight of the drugs, a 

lack of user paraphernalia or possession of user paraphernalia, 
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and the nature of the area in which the drugs are found [N.T. at 

247:16–248:7; 248:11-25, February 4, 2015]. Detective 

Arredondo further testified that the circumstances of the instant 

case, including the age of [Walden], the quantity and weight of 

the drugs, and the packaging of the drugs, militated in favor of 

the conclusion that [Walden] possessed the drugs for delivery. 

[Id. at 250:16–251:11].

Trial Court Opinion, 6/24/2015, at 6–7. Walden was convicted and 

sentenced as stated above. This appeal followed.2

Walden first challenges the sufficiency of the evidence. The 

Commonwealth, however, asserts that Walden has waived this issue, as he 

did not directly raise any sufficiency claim in his Pa.R.A.P. 1925(b) 

Statement. 

In his Rule 1925(b) Statement, Walden alleged that “the weight of the 

evidence presented at trial was insufficient to prove a guilty verdict of 

Possession With Intent to Deliver Cocaine (F), 35 P.S. § 780-113(a)(30).” 

Walden’s Rule 1925(b) Statement, 6/9/2015, at 2. This vague allegation 

appears to challenge only the weight — not the sufficiency — of the 

evidence. Indeed, the trial court interpreted this claim strictly as a challenge 

to the weight of the evidence, and addressed the issue as a weight claim.3 

____________________________________________

2 Walden timely complied with the order of the trial court to file a Pa.R.A.P. 

1925(b) statement of errors complained of on appeal.

3 We note the trial court did state, as part of its analysis of the weight of the 

evidence claim, that there was sufficient evidence presented to support the 

jury’s verdict. See Trial Court Opinion, 6/24/2015, at 5–6.
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As such, we agree with the Commonwealth that a finding of waiver 

regarding the issue of the sufficiency of the evidence is warranted. See 

Commonwealth v. Johnson, 51 A.3d 237, 246–247 (Pa. Super. 2012) (en 

banc) (finding waiver of issues not specifically raised in Rule 1925(b) 

statement). See also Commonwealth v. Garang, 9 A.3d 237, 246 (Pa. 

Super. 2010) (“[W]hen challenging the sufficiency of the evidence on 

appeal, the Appellant’s 1925 statement must specify the element or 

elements upon which the evidence was insufficient in order to preserve the 

issue for appeal.”) (quotations and citation omitted).

In any event, were we to address Walden’s sufficiency claim, we would 

find it to be meritless. Our standard of review of sufficiency claims is wellsettled:

A claim challenging the sufficiency of the evidence is a question 

of law. Evidence will be deemed sufficient to support the verdict 

when it establishes each material element of the crime charged 

and the commission thereof by the accused, beyond a 

reasonable doubt. Where the evidence offered to support the 

verdict is in contradiction to the physical facts, in contravention 

to human experience and the laws of nature, then the evidence 

is insufficient as a matter of law. When reviewing a sufficiency

claim[,] the court is required to view the evidence in the light 

most favorable to the verdict winner giving the prosecution the 

benefit of all reasonable inferences to be drawn from the 

evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal 

citations omitted).

The elements of PWID are set forth by statute as follows.

§ 780-113. Prohibited acts; penalties
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(a) The following acts and the causing thereof within the 

Commonwealth are hereby prohibited:

. . .

(30) Except as authorized by this act, the manufacture, 

delivery, or possession with intent to manufacture or 

deliver, a controlled substance by a person not 

registered under this act, or a practitioner not registered 

or licensed by the appropriate State board, or knowingly 

creating, delivering or possessing with intent to deliver, 

a counterfeit controlled substance.

35 P.S. § 780-113(a)(30).

To sustain a conviction for PWID, the Commonwealth must prove 

both the possession of the controlled substance and the intent to 

deliver the controlled substance. If the contraband is not found 

on the appellant’s person, the Commonwealth must prove that 

the appellant had constructive possession of the contraband, 

which has been defined as the ability and intent to exercise 

control over the substance. The Commonwealth may establish 

constructive possession through the totality of the 

circumstances.

Commonwealth v. Estepp, 17 A.3d 939, 944 (Pa. Super. 2011) (quotation 

and citations omitted). 

While Walden divides his sufficiency discussion into two subparts, the 

gist of both parts of the argument appears to be only that the 

Commonwealth’s proof was insufficient to establish the element of 

possession. We find no merit in this argument. 

Contrary to Walden’s assertion set forth in subpart A of his sufficiency 

challenge, that “the video did not show [Walden] and no one was able to 
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identify him on the scene in the video,”4 Walden was, at trial, identified in 

the video by Detective Jason Hillis and Sergeant Marc Crisafulli as the person 

discarding a baggie in the same place where a baggie with 52 individual 

packets of cocaine was recovered by police. See N.T., 2/3/2015, at 162–

163; N.T., 2/4/2015, at 181, 208–209, 211, 213–214, 221, 226, 229, 234, 

240–241. Further, Walden’s bald statement in subpart B that “the 

Commonwealth failed to link him as the owner or the person who possessed 

the drugs with intent to deliver the drugs”5ignores the video footage and 

above-referenced testimony. It also ignores the testimony of Hillis and 

Crisafulli that the drugs were found in the street by a trail of blood that ran 

from the porch at 1505 Washington Street and went west down the 

sidewalk, leading to Walden, who was found bleeding and laying by a tree. 

See N.T., 2/3/2015, at 151–153; N.T., 2/4/2015 at 188, 228–229. In this 

regard, Walden, in a police interview, confirmed his presence at the scene 

and his path of travel, running west from the porch where the shooting 

____________________________________________

4 Walden’s Brief at 12 (unnumbered).

5 The entire argument presented in subsection B of Walden’s sufficiency 

challenge is as follows:

[Walden] had a jury trial and during the presentation of its 

evidence the Commonwealth failed to link [Walden] as the owner 

or the person who possessed the drugs with intent to deliver the 

drugs.

Walden’s Brief at 13 (unnumbered).
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occurred, down the sidewalk, then into the street, and back towards the 

sidewalk where he collapsed. See N.T., 2/4/2015, at 232–234. Accordingly, 

we conclude Walden’s sufficiency argument, even if preserved, would 

warrant no relief.

Next, Walden challenges the weight of the evidence. The 

Commonwealth takes the position this claim is waived. We agree. Our 

review confirms that Walden has waived this matter by failing to raise it in a 

post-sentence motion, or by a written or oral motion prior to sentencing. 

See Pa.R.Crim.P. 607(A). Further, the fact the trial court addressed this 

claim in its Pa.R.A.P. 1925(a) opinion does not overcome waiver. As this 

Court, in Commonwealth v. Thompson, 93 A.3d 478 (Pa. Super. 2014), 

explained:

[A] weight of the evidence claim must be preserved 

either in a post-sentence motion, by a written motion 

before sentencing, or orally prior to sentencing. 

Pa.R.Crim.P. 607; Commonwealth v. Priest, 2011 PA 

Super 85, 18 A.3d 1235, 1239 (Pa. Super. 2011). Failure 

to properly preserve the claim will result in waiver, even 

if the trial court addresses the issue in its opinion. 

Commonwealth v. Sherwood, 603 Pa. 92, 982 A.2d 

483, 494 (Pa. 2009).

Commonwealth v. Lofton, 2012 PA Super 267, 57 A.3d 1270, 

1273 (Pa. Super. 2012).

Appellant is mistaken in his belief that the trial court’s 

addressing of the merits of his weight claim in its Rule 1925(a) 

opinion permits us to review the claim. “[A]ppellate review [of a 

weight claim] is limited to whether the trial court palpably 

abused its discretion....” Commonwealth v. Champney, 574 

Pa. 435, 832 A.2d 403, 408 (Pa. 2003). Here, the trial court 

never ‘ruled’ on the issue and, therefore, it could not grant nor 
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deny the claim at the time it was first raised by Appellant in his 

concise statement. Although the court addressed the issue’s 

merits in its Rule 1925(a) opinion, the trial court was, by that 

time, divested of jurisdiction to take further action in the case. 

See Pa.R.A.P. 1701(a) “Except as otherwise prescribed by these 

rules, after an appeal is taken or review of a quasijudicial order 

is sought, the trial court or other government unit may no longer 

proceed further in the matter.”). Thus, the trial court was never 

given the opportunity to provide Appellant with relief and, 

consequently, there is no discretionary act that this Court could 

review. Appellant’s weight of the evidence claim is waived.

Thompson, 93 A.3d at 490–491. Accordingly, we deem Walden’s weight 

claim waived.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/16/2016