J-A35036-14 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

JAMES MOORE, 

 Appellant No. 338 WDA 2014 

Appeal from the Judgment of Sentence October 4, 2013 

In the Court of Common Pleas of Westmoreland County

Criminal Division at No(s): CP-65-CR-0001608-2012 

BEFORE: BENDER, P.J.E., BOWES, and ALLEN, JJ. 

MEMORANDUM BY BOWES, J.: FILED JANUARY 09, 2015 

James Moore appeals from his aggregate judgment of sentence of 

twenty to forty years incarceration after a jury found him guilty of numerous 

delivery and possession with intent to deliver (“PWID”) counts, two counts of 

corrupt organizations, criminal conspiracy, and hindering apprehension. We 

affirm the findings of guilt, but vacate his judgment of sentence and remand 

for resentencing. 

The facts of this case involve a drug trafficking enterprise in which 

Appellant was a principal member. Much of the testimony against Appellant 

was relayed by eight admitted heroin addicts. One such person, 

Jessica Bales, testified to meeting with Appellant in the summer of 2011 to 

sell heroin for him. Ms. Bales acknowledged that she did not personally 

observe Appellant sell heroin, but maintained that he kept a shoe box 
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containing heroin in the ceiling tiles of her apartment. During this time, 

Appellant also introduced Ms. Bales to Dominick Haynes, also known as Dot 

or Dottie. Mr. Haynes was tried together with Appellant. According to 

Ms. Bales, Mr. Haynes stayed at her apartment and she personally witnessed 

him sell heroin. She also received heroin in exchange for allowing Appellant 

and Mr. Haynes to sell heroin from her residence. Ms. Bales moved later 

that fall from that apartment to a trailer in Mennock Manor, Greensburg. 

There, Mr. Haynes and Chance “Sky” McKiver sold heroin. Mr. McKiver had 

previously sold heroin from Ms. Bales’ prior apartment as well. Mr. Haynes 

and Mr. McKiver supplied Ms. Bales with heroin in exchange for using her 

home. 

 During the fall of 2011, Kelsey Graham, a twenty-two-year-old 

women and heroin addict, purchased heroin from Appellant. Ms. Graham 

averred that Appellant began to provide her with four stamp bags of heroin 

in exchange for sex. Further, Ms. Graham traveled with Appellant to New 

Jersey on November 1, 2011, so that he could purchase heroin for resale in 

Pennsylvania. A New Jersey State Trooper, Daniel Wojcik, was able to 

confirm this trip because he had conducted a traffic stop of the two. When 

Appellant and Ms. Graham returned to the Greensburg area, Appellant gave 

her ten stamp bags of heroin. 

Around this same time, Jillian Davis, another heroin addict, returned to 

her Hawksworth Garden apartment after a stay in rehab. She then met 
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Mr. McKiver and another individual, Tyrone Leonard, in order to purchase 

heroin. Ms. Davis allowed the two men to sell heroin from her apartment for 

several days. Thereafter, Ms. Davis met Appellant, who inquired if other 

dealers could stay at her apartment. She agreed and Mr. Haynes and 

Chauncy “Gunner” Bray began to sell heroin in December 2011 and January 

2012. In January 2012, Ms. Davis returned to rehab and gave Mr. Bray a 

key to her apartment. Mr. Bray agreed to pay her rent for January. 

Additional testimony revealed that on December 7, 2011, Appellant 

met with Anna Morcheid and Mr. Bray at a Red Robin restaurant. Mr. Bray 

had recently been released from prison. Before he was incarcerated, 

Mr. Bray provided Appellant with a cell phone containing heroin contacts. In 

addition, he had given to Ms. Morcheid a cell phone with contacts of 

individuals who purchased cocaine. Mr. Bray and Appellant apparently had 

some dispute over a woman. The Red Robin meeting was designed to settle 

the issue. While the three individuals were meeting at Red Robin, a 

confidential informant (“CI”) working with Detective Jerry Vernail of the 

Greensburg Police and State Trooper Greg Norton arranged to purchase 

cocaine. Ms. Morcheid left the restaurant and provided crack cocaine to the 

CI. 

As a result of the Red Robin meeting, Mr. Bray began to sell heroin 

that was supplied by Appellant. According to Mr. Bray, Appellant would 

provide him with ten bricks of heroin for $2500, and Mr. Bray would sell that 
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product for $5000. Mr. Bray indicated that he used other dealers to sell the 

heroin, including his girlfriend Nicole Dudek. Mr. Bray estimated that for 

three or four weeks he sold between ten and thirty bricks of heroin, provided 

to him by Appellant, every few days. 

In January 2012, Detective Vernail and Trooper Norton began to utilize 

Jimmie Knight as a CI. Mr. Knight would contact a certain 724-217-xxxx 

number to arrange for heroin purchases. On January 19, 2012, Mr. Knight 

called that number and met Appellant at the Hawksworth Garden 

apartments. Trooper Norton was with Mr. Knight at the time in Mr. Knight’s 

car. However, Mr. Knight and Appellant walked behind the apartment 

building out of Trooper Norton’s sight. Mr. Knight returned with twenty-four 

bags of heroin and without the $190 provided by police for the purchase. 

A similar incident occurred on January 23, 2012. Mr. Knight 

telephoned the aforementioned number and was instructed to return to the 

same location. Both he and Trooper Norton traveled to the Hawksworth 

Garden apartments. Mr. Knight again went out of the sight of the trooper 

for approximately ten to fifteen seconds, when he entered a stairwell. 

Mr. Knight then turned over twenty stamp bags of heroin. Although Trooper 

Norton did not see Appellant on this date, Mr. Knight maintained that he 

twice purchased heroin from Appellant in the Hawksworth Garden apartment 

stairwell. 
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The following day Trooper Norton and Mr. Knight arranged for an 

additional heroin purchase. On this occasion, Mr. Knight called another 

number, 412-853-xxxx, and spoke to an individual identified only as “Sosa.” 

Trooper Norton was able to purchase fourteen stamp bags of heroin from 

Sosa in exchange for $120. The day after this purchase, Trooper Norton and 

Mr. Knight were instructed to go to Ms. Bales’ residence at Mennock Manor 

to make their desired heroin purchase. Sosa exited Ms. Bales’ trailer and 

sold Mr. Knight fifty stamp bags of heroin for $350. 

Trooper Norton and Mr. Knight made an additional purchase on 

February 7, 2012 at the Days Inn in New Stanton, Pennsylvania. There, 

Mr. McKiver sold Mr. Knight twenty-five stamp bags of heroin in exchange 

for $200. On February 9, 2012, Trooper Norton purchased heroin from Sosa 

at a Knights Inn in Greensburg after telephoning the 724-217-xxxx number. 

Trooper Norton bought fifty stamp bags of heroin for $400. 

As part of the February 9, 2012 transaction, Detective Vernail 

effectuated a traffic stop of a car after its occupants had been observed 

buying drugs at the Knights Inn. At police direction, one occupant called the 

724-217-xxxx number to arrange for another purchase. Ms. Dudek sold the 

individual eleven stamp bags. 

Trooper Norton and Mr. Knight again purchased heroin from 

Mr. McKiver on February 21, 2012, buying twenty-three stamp bags of 

heroin. That same date Appellant contacted Mr. Bray to inquire if he wanted 
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Appellant’s “dope” phone with the 724-217-xxxx number and nine bricks of 

heroin. Mr. Bray, Ms. Dudek and Kristin Weightman met with Appellant to 

discuss drug business. Appellant gave Ms. Weightman the nine bricks of 

heroin, suboxone, and a cell phone. Mr. Bray stashed six of the bricks of 

heroin and much of the suboxone at Ms. Dudek’s home. Ms. Dudek, 

Ms. Weightman, and Mr. Bray then traveled to Ms. Davis’ Hawskworth 

Garden apartment. Mr. Haynes arrived later that evening and he and 

Ms. Weightman stayed the night. Ms. Weightman was selling heroin from 

the apartment that night. 

The next day, February 22, 2012, police observed Ms. Weightman 

conduct several hand-to-hand drug transactions outside the Hawksworth 

Garden apartments. Police pulled over one customer, who admitted to 

purchasing heroin from Ms. Weightman. Police witnessed Ms. Weightman 

return to apartment B23, Ms. Davis’ apartment, after the drug deals. After 

observing a sale, police began to approach Ms. Weightman and another 

individual, Kurt McCamley. Mr. McCamley had been instructed by Mr. Bray 

to retrieve nine bricks of heroin from Mr. McCamley’s home and bring it to 

the apartment. 

Police did not intercept Ms. Weightman before she entered the 

apartment. Upon approaching the door, police detected a powerful 

marijuana smell emanating from the apartment. After knocking and asking 

to speak to the renter, police heard some movement inside. They then 
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repeatedly identified themselves as police. No one answered and the 

troopers forcibly entered. Upon entering, Mr. Bray, who was inside, 

attempted to flee and was captured. Police saw, in plain view, the nine 

bricks of heroin and a large amount of money. Also present in the 

apartment were Mr. Haynes, Mr. McKiver, and Daniel Bizzelle.1 A cellphone 

with the 724-217-xxxx number was among the phones located in the 

apartment. Appellant was not present. 

As part of the investigation, police that same day executed a search 

warrant for Ms. Dudek’s home. That search uncovered six bricks of heroin, 

suboxone, cash, and cell phones. Police contacted Ms. Dudek, told her of 

their discovery, and attempted to arrange for her to turn herself in. 

Ms. Dudek lied to police regarding her location and contacted Appellant. 

Appellant then arranged for another woman to pick up Ms. Dudek. 

Ms. Dudek stayed with Appellant for five days and Mr. Haynes one night. 

Both men knew she was wanted by police. After Mr. Haynes expressed 

concern about her being at his residence, Ms. Dudek turned herself in to 

police. She provided information to Detective Vernail that Ms. Morcheid was 

in possession of additional bricks of heroin. Police arrested Ms. Morcheid on 

March 2, 2012, in possession of eight bricks of heroin. 

____________________________________________ 

1

 Mr. Bizzelle is the younger brother of Chauncy Bray. He was also referred 

to at one point as Dante Bizzelle. 
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On March 13, 2012, Appellant asked one of his buyers, heroin addict 

Laura Beth Stinson, to pick up and house two individuals: Earl Alford and 

Khalil Thomas. The two possessed heroin and cash. Ms. Stinson 

transported the individuals to her home in exchange for heroin. Trooper 

Norton and Mr. Knight made a purchase of thirty-six stamp bags of heroin 

from that location that day. Another trooper stopped Ms. Stinson after she 

left her residence. Ms. Stinson agreed to allow police to search her home. 

Police found Mr. Alford and Mr. Thomas inside. Mr. Alford was seated on a 

toilet in the bathroom, the tank of which concealed heroin. Mr. Thomas was 

in a bedroom where heroin was found behind a dresser. In April, police were 

able to locate Appellant. At the time of his arrest, he had in his possession 

another cellphone with the identical 724-217-xxxx number.2

The Commonwealth charged Appellant with twenty criminal counts. 

The charges included two counts of corrupt organizations, criminal 

conspiracy, twelve counts of delivery of a controlled substance, four counts 

of possession with intent to deliver a controlled substance,3 and hindering 

apprehension. The jury convicted Appellant of sixteen counts, finding him 

not guilty of two delivery counts and two PWID charges. The trial court 

____________________________________________ 

2

 A Commonwealth forensics expert testified that an individual can have two 

phones with the same number by asking for the telephone subscriber to 

reissue a SIM card with that number. 

3

 We are aware that both delivery and possession with intent to deliver are 

governed by the same statute. 
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imposed sentence on October 4, 2013. The court sentenced Appellant to 

consecutive two and one-half-to-five-year terms of incarceration on the 

corrupt organizations crimes. In addition, it imposed five consecutive twoto-four-year periods of incarceration for delivery and PWID crimes. Lastly, 

the court sentenced Appellant, pursuant to a mandatory minimum based on 

the weight of the drugs, to five to ten years incarceration. The court 

imposed the remaining sentences concurrently. As mentioned, Appellant’s 

aggregate sentence was twenty to forty years imprisonment. 

Appellant filed a timely post-sentence motion, which included a 

challenge to the alleged excessiveness of his sentence. The trial court 

denied Appellant’s motion. This timely appeal ensued. The trial court 

directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of 

errors complained of on appeal. Appellant complied, and the trial court 

authored its Pa.R.A.P. 1925(a) decision. The matter is now ready for this 

Court’s review. Appellant raises six issues on appeal. 

1. Whether the court below erred [in] failing to grant a motion 

for judgment of acquittal, where there was insufficient 

evidence to sustain a guilty verdict with respect to the 

following charges: 

a. Count 4—Delivery of a Controlled Substance—January 

2011 to April 19, 2012 

b. Count 6—Delivery of a Controlled Substance—Crack 

Cocaine—Red Robin—December 7, 2011; and 

c. Count 8—Delivery of a Controlled Substance—Heroin—

Hawksworth Apartments—January 23, 2012 

2. Whether the court below erred in allowing witnesses to 

present improper hearsay testimony, in particular: Jessica 
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Bales; Trooper Gregg Norton; Kelsey Graham; and Desiree 

Wilson. 

3. Whether the court below erred in allowing the Commonwealth 

to offer prior bad act testimony from Desiree Wilson and 

Jimmie Lee Knight in violation of Pennsylvania Rule of 

Evidence 404. 

4. Whether the court below erred in allowing evidence to be 

presented in violation of the best evidence rule from Tpr. 

Daniel Wojcik. 

5. Whether the sentence imposed is excessive, failing to 

comport with the goal and objectives of the sentencing code, 

having not given sufficient weight to the personal history 

factors, the time frame in which the incidents occurred, as 

well as the factors raised by counsel at the time of 

sentencing. 

6. Whether the court below erred in imposing mandatory

minimum sentences at Counts 17 (5 to 10 years) and 19 (3 to 

6 years) without submitting the weight of the drugs to the 

jury in violation of Alleyne v. United States, 133 S.Ct. 2151 

(2013). 

Appellant’s brief at 5-6. 

In conducting a sufficiency of the evidence review, we view all of the 

evidence admitted, even improperly admitted evidence. Commonwealth v. 

Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc). We consider such 

evidence in a light most favorable to the Commonwealth as the verdict 

winner, drawing all reasonable inferences from the evidence in favor of the 

Commonwealth. Id. When evidence exists to allow the fact-finder to

determine beyond a reasonable doubt each element of the crimes charged, 

the sufficiency claim will fail. Id. 
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The evidence “need not preclude every possibility of innocence and the 

fact-finder is free to believe all, part, or none of the evidence presented.” 

Id. In addition, the Commonwealth can prove its case by circumstantial 

evidence. Where “the evidence is so weak and inconclusive that, as a 

matter of law, no probability of fact can be drawn from the combined 

circumstances[,]” a defendant is entitled to relief. This Court is not 

permitted “to re-weigh the evidence and substitute our judgment for that of 

the fact-finder.” Id. 

Appellant’s specific challenge relates to the jury’s adjudication on three 

separate delivery of heroin charges. Two of those crimes pertain to specific 

incidents and another count, count four, was a historical charge relative to 

other heroin transactions between January 2011 and April 19, 2012, not 

encompassed by the specific charges. 

Initially, we note that Appellant begins his argument by setting forth a 

weight of the evidence claim and not a sufficiency argument. The two types 

of issues are distinct. Indeed, a weight claim concedes that sufficient 

evidence exists. Commonwealth v. Lewis, 911 A.2d 558, 566 (Pa.Super. 

2006). Muddling the two categories, Appellant proceeds to maintain that the 

“historical count was based on speculation and lacked sufficient evidence at 

trial to support a finding of guilty.” Appellant’s brief at 13-14. According to 

Appellant, the charge was vague and could have permitted the jury to find 
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him guilty based on one of the specific incidents. Additionally, he posits that 

there was no lab report as to the historical charge.

4

 

The Commonwealth counters that the historical count was “proven, not 

by speculation, but by the direct testimony of multiple admitted heroin 

addicts.” Commonwealth’s brief at 21. It highlights that Kelsey Graham 

testified to purchasing heroin from Appellant the first time she met him. 

She also submitted that Appellant provided her with heroin in exchange for 

sex. Ms. Graham further maintained that Appellant supplied her with ten 

bags of heroin after she transported him to Paterson, New Jersey, so that he 

could purchase heroin for resale in Greensburg. 

Sarah Householder indicated that she had purchased heroin from 

Appellant, and Laura Beth Stinson testified that Appellant provided her with 

heroin once or twice. Jillian Davis acknowledged receiving heroin from 

Appellant, and Jimmie Knight testified that the first time he met Appellant he 

purchased heroin from him. All of the aforementioned witnesses testified 

that these purchases occurred between the summer of 2011 and spring of 

2012. This overwhelming amount of evidence unequivocally is sufficient to 

demonstrate that Appellant delivered heroin at times not specified in the 

remaining delivery and PWID counts. Appellant’s argument relative to the 

historical count is meritless. 

____________________________________________ 

4

 The reason for the lack of a lab report was, of course, because the 

individuals who testified about the purchases had used the drug. 
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Appellant also contests a December 7, 2011 cocaine delivery and a 

January 23, 2012 delivery of heroin. The December incident occurred when 

Appellant and Anna Morcheid met with Chauncy Bray, one day after 

Mr. Bray’s release from prison, at a Red Robin restaurant. During the 

meeting, Ms. Morcheid exited the restaurant and delivered cocaine to a 

confidential informant. 

Appellant maintains that he was merely present at the restaurant with 

Ms. Morcheid when she delivered cocaine and not involved with the cocaine 

transaction. The Commonwealth responds that Appellant was liable as an 

accomplice and a co-conspirator. It points out that the purpose of the 

meeting at Red Robin was to discuss the drug trade. The Commonwealth 

highlights that while Mr. Bray was incarcerated, Appellant retained 

Mr. Bray’s cellphone with heroin contacts and Ms. Morcheid had Mr. Bray’s 

“crack phone.” Hence, it suggests that Mr. Bray, Appellant, and 

Ms. Morcheid continued drug operations while Mr. Bray was incarcerated. 

Finally, the Commonwealth avers that the jury was instructed that it could 

not find Appellant guilty based on his mere presence at Red Robin and is 

presumed to have followed that instruction. 

The trial court concluded that, because Appellant was charged at count 

three of the criminal information with conspiracy to deliver and possession 

with intent to deliver a controlled substance and Ms. Morcheid and Mr. Bray 

were specifically named in that count as co-conspirators, Appellant was 
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liable for their acts in furtherance of the conspiracy. Here, the jury was 

charged on both conspiratorial and accomplice liability.5 Appellant did not 

challenge either instruction. As recently highlighted, the two concepts are 

distinct. Commonwealth v. Knox, __ A.3d __ (Pa. 2014) (filed December 

15, 2014); see also commonwealth v. Roebuck, 32 A.3d 613, 622-623 

(Pa. 2011). Accomplice liability is offense specific. Knox, supra. A person 

is only an accomplice if, acting with intent to facilitate, in this case, a cocaine 

delivery, he solicits, aids, agrees or attempts to aid the person in planning or 

committing the crime. 18 Pa.C.S. § 306. 

A person’s “status as an accomplice relative to some crimes within a 

larger criminal undertaking or episode no longer per se renders a defendant 

liable as an accomplice for all other crimes committed.” Knox, supra at *2. 

Thus, as it relates to accomplice liability, we look to whether the evidence 

demonstrated that Appellant promoted or facilitated Ms. Morcheid’s delivery 

of cocaine by aiding, agreeing to aid, or attempting to aid her in delivering 

that substance. 

____________________________________________ 

5

 Justice Eakin in a concurring opinion in Commonwealth v. Knox, __ A.3d 

__ (Pa. 2014), disputed that a person can be found guilty of an underlying 

possession of a firearm crime as a conspirator. Rather, he opined that the 

person is guilty of a conspiracy, which is itself a separate crime, or guilty of 

the firearms crime under accomplice liability or joint/constructive 

possession. Compare Commonwealth v. Johnson, 26 A.3d 1078, 

1096 (Pa. 2011) (Eakin, J., concurring) (“heroin found in a co-conspirator's 

possession may be attributable to the defendant as a result of conspiratorial 

liability.”). 
J-A35036-14 

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With respect to conspiratorial liability, it must be remembered that 

conspiracy to commit a substantive offense and the substantive offense itself 

are separate crimes. Commonwealth v. Johnson, 26 A.3d 1078, 1090 

(Pa. 2011). A conspirator is responsible “for the natural and probable 

consequences of acts committed by his fellow conspirator or conspirators if 

such acts are done in pursuance of the common design or purpose of the 

conspiracy.” Commonwealth v. Roux, 350 A.2d 867, 871 (Pa. 1976). 

Hence, illegal narcotics possessed and delivered by one member of a 

conspiracy may be attributed to another member of that conspiracy. 

The trial court instructed the jury that it could find Appellant guilty 

under conspiratorial liability 

for the act or acts of another person or persons if each of the 

following elements [was] proved beyond a reasonable doubt: 

(a) that the other person who committed a specific act was 

also a member of the same conspiracy; 

(b) that the crime in question was committed while the 

conspiracy was in existence; and 

(c) that the crime in question was committed to further the 

goals of the conspiracy. 

N.T., 6/17-24/14, at 1263. 

This Court has further held that a person is a conspirator if they “1) 

entered into an agreement to commit or aid in an unlawful act with another 

person or persons; 2) with a shared criminal intent; and 3) an overt act was 

done in furtherance of the conspiracy.” Commonwealth v. Devine, 26 
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A.3d 1139, 1147 (Pa.Super. 2011) (discussing concept of conspiracy in the 

context of the substantive crime of conspiracy). In examining whether a 

conspiracy exists, we consider any association between the alleged 

conspirators; knowledge of the commission of the crime; presence at the 

scene of the crime, and participation in the object of the conspiracy.” 

Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa.Super. 2002) (en 

banc) (analyzing substantive crime of conspiracy). 

Instantly, the evidence of record demonstrates that Mr. Bray had 

previously supplied Appellant with a phone for dealing heroin. Mr. Bray’s 

“crack phone” was possessed by Ms. Morcheid. Ms. Morcheid also was 

involved in dealing heroin for Appellant, and was later arrested in possession 

of a significant quantity of heroin. She met with Mr. Bray and Appellant on 

the date in question to facilitate the ongoing drug business. During this 

meeting at the Red Robin, Ms. Morcheid delivered crack cocaine to a CI in 

the presence of an undercover police officer. 

This evidence substantiates that Appellant was actively engaged in an 

ongoing conspiracy with Mr. Bray and Ms. Morcheid to sell illegal drugs. 

Although Appellant was more involved in the sale of heroin, he was not 

merely present at the Red Robin when Ms. Morcheid delivered the cocaine. 

Mr. Bray had just been released from prison. Appellant and Ms. Morcheid 

were continuing to operate Mr. Bray’s drug enterprise during his 

incarceration. Ms. Morcheid was actively involved with aiding Appellant in 
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the sale of heroin as well. The evidence was not so weak and inconclusive 

that no probability of fact could be derived therefrom. The jury could have 

reasonably inferred that Ms. Morcheid was assisting Appellant in selling 

cocaine. Accordingly, we decline to upset the jury’s verdict and find 

sufficient evidence was introduced to establish Appellant’s guilt.

Appellant’s final sufficiency argument is that Trooper Norton could not 

identify Appellant as being present on January 23, 2012, when CI Jimmie 

Knight purchased heroin. He submits that Mr. Knight could not recall with 

clarity the January 23rd incident and admitted to making other purchases at 

the Hawksworth Garden apartments that were consistent with the January 

23rd transaction. Without citation to any legal authority, Appellant argues 

that the conviction based on the January 23rd event is founded on 

speculation. 

 The Commonwealth rejoins that Mr. Knight identified Appellant as the 

person who sold him heroin at least twice in the stairwell of the Hawksworth 

Garden apartments. It acknowledges that Mr. Knight admitted to purchasing 

heroin after controlled buys for his own use. Nonetheless, it notes that 

Trooper Norton did identify Appellant from the January 19th incident and 

Mr. Knight telephoned the same 724-217-6662 number on both occasions. 

 Here, Appellant’s claim fails. The telephone number used on 

January 23, 2012 to set up the purchase was the same number of a phone 

found on Appellant when he was arrested. Appellant, on January 19, 2012, 
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had been personally observed at the same location with Mr. Knight after 

Mr. Knight called the number in question to purchase heroin. The evidence 

shows that Appellant was the principal supplier of heroin for the other low 

level drug sellers. Even if Appellant was not actually present, evidence that 

he conspired with those regularly selling heroin from the Hawksworth 

Garden Apartments was overwhelming. This is simply not a case where the 

evidence is so weak and inconclusive that no probability of fact can be drawn 

from it. 

The second issue Appellant forwards is that the court erred by 

permitting four separate witnesses to offer hearsay testimony. We consider 

a trial court’s decision on the admission of evidence under an abuse of 

discretion standard. Commonwealth v. Feliciano, 67 A.3d 19, 

27 (Pa.Super. 2013) (en banc). Appellant first maintains that certain 

testimony by Jessica Bales was improperly admitted. He submits that 

Ms. Bales’ testimony that Chauncy Bray instructed her to pick up several 

bricks of heroin from one person’s home and transport them to another 

house was hearsay. Appellant continues that the co-conspirator exception to 

the hearsay rule did not apply. In this regard, Appellant asserts that the 

statement evidenced a conspiracy between Mr. Bray and Ms. Bales, but had 

no relation to him. 

 The Commonwealth rejoins that Ms. Bales’ testimony was admissible 

under the co-conspirator exception to the hearsay rule. See Pa.R.E. 
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803(25). “[T]o establish the admissibility of a coconspirator's statement, it 

is not required to prove beyond a reasonable doubt that a conspiracy 

existed. Rather, it must only show by a preponderance of the evidence that 

a conspiracy existed.” Feliciano, supra at 26-27. The preponderance 

standard “may be inferentially established by showing the relation, conduct 

or circumstances of the parties.” Id. at 27. 

The Commonwealth points out that, prior to the disputed testimony, 

Ms. Bales testified that beginning in the summer of 2011 she had discussed 

selling heroin with Appellant. She also provided that Appellant stored heroin 

in the ceiling tiles of her home and brought other individuals to her residence 

to sell heroin. The Commonwealth adds that Ms. Bales testified that she 

knew Appellant, Mr. Bray, and Dominick Haynes were involved with selling 

heroin together. According to the Commonwealth, this evidence establishes 

by a preponderance of the evidence that a conspiracy existed between all of 

these individuals to sell illegal drugs. We agree.

Appellant’s paltry argument ignores that the co-conspirator exception 

applies to statements made by a party’s co-conspirator during and in 

furtherance of the conspiracy. Mr. Bray was part of the conspiracy with 

Appellant and his statements to Ms. Bales certainly were made in 

furtherance of the conspiracy. See Feliciano, supra at 27 (“To lay a 

foundation for the co-conspirator exception to the hearsay rule, the 

Commonwealth must prove that: (1) a conspiracy existed between declarant 
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and the person against whom the evidence is offered and (2) the statement 

sought to be admitted was made during the course of the conspiracy. In 

addition, there must be evidence other than the statement of the coconspirator to prove that a conspiracy existed.”). Appellant’s position is 

without merit. 

 Next, Appellant contends that the trial court erred in permitting 

Trooper Norton to testify to information provided to him by a CI, Jimmie 

Knight. In one paragraph, and without citation to legal authority, Appellant 

argues that Trooper Norton’s testimony that Mr. Knight identified a person 

nicknamed “Jae or Jizzle” as the drug seller was inadmissible hearsay where 

other evidence showed that these were Appellant’s nicknames. 

 The Commonwealth counters that the evidence was not hearsay and, 

even if it was hearsay, it fell within the then-existing mental, emotional, or 

physical condition exception. We need not delve too deeply into these 

arguments because, even assuming arguendo that the statements were 

inadmissible hearsay, the identical evidence was properly admitted via 

Mr. Knight’s own testimony. Thus, the evidence was merely cumulative of 

other properly admitted evidence and could not have had any effect on the 

outcome of the trial. 

 Appellant also challenges testimony from Kelsey Graham. Specifically, 

Appellant posits that Ms. Graham’s testimony that Kristen Weightman had 

told her that Appellant was upset at Ms. Weightman for messing up money 
J-A35036-14 

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connected to heroin transactions was hearsay. He avers that this testimony 

does not fall within the co-conspirator exception to the hearsay rule because 

it impermissibly bootstraps. In this respect, he argues that the statement 

itself is what establishes the conspiracy. 

 The Commonwealth responds that the evidence was admissible under 

the co-conspirator exception since it established Ms. Weightman’s role in the 

drug organization through various other sources. It notes that 

Ms. Weightman was romantically involved with Appellant for a period, and 

that numerous individuals testified that Ms. Weightman sold heroin for 

Appellant. 

 The evidence that Ms. Weightman was involved in the drug conspiracy 

is overwhelming. The objected-to statement was not the only evidence that 

established a conspiracy between Appellant and Ms. Weightman. Therefore, 

Appellant’s argument misses the mark. Moreover, the statement was not 

introduced to prove that Ms. Weightman did, in fact, botch various heroin 

deals. Hence, the evidence does not qualify as hearsay because it was not 

introduced for the truth of the matter asserted. See Pa.R.E. 802. It is not 

impermissible bootstrapping to allow the evidence as proof of the conspiracy 

when the statement is not being used to prove the truth of the underlying 

statement. Appellant’s position with respect to Desiree Wilson is identical to 

that leveled as to Ms. Weightman; and, therefore, it fails for the same 

reasons. 
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 Appellant’s third argument on appeal is that the trial court erred in 

allowing the introduction of prior bad acts evidence. Appellant challenges 

the introduction of two pieces of evidence. First, he asserts that it was error 

to allow Desiree Wilson to testify that she heard Appellant slap 

Ms. Weightman, presumably over Ms. Weightman’s inability to manage the 

money aspect of the heroin dealing and her usage of the product. Second, 

Appellant contends that the court erred in permitting Mr. Knight to testify 

that Appellant offered him $5,000 not to testify at trial. 

As to the testimony of both Ms. Wilson and Mr. Knight, Appellant failed 

to object. Appellant earlier objected to Ms. Wilson’s testimony regarding 

Ms. Weightman accepting $250 in counterfeit money for heroin, but did not 

object to her testimony that Appellant smacked Ms. Weightman. Thus, the 

issue is not preserved. Pa.R.A.P. 302(a). With regard to Mr. Knight’s 

pertinent testimony, Appellant objected once to the leading nature of one 

question, which the trial court sustained. He did not contest the introduction 

of evidence that he offered Mr. Knight $5,000 not to testify. Accordingly, his 

issue is waived. Further, even if the issue was not waived, we would find no 

error in its admission since Mr. Knight’s testimony was admissible to 

establish consciousness of guilt. See Commonwealth v. Rega, 933 A.2d 

997, 1009 (Pa. 2007) (collecting cases). 

 The fourth claim Appellant levels on appeal is that the court erred in 

disregarding the best evidence rule by permitting New Jersey State Trooper 
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Daniel Wojcik to testify to the traffic stop he performed on Kelsey Graham 

and Appellant in New Jersey. Prior to testifying, the officer reviewed a video 

tape of the traffic stop. Appellant objected at trial and argued that the video 

was the best evidence of what occurred and it was improper to ask the 

witness about what he viewed on the tape. The Commonwealth responded 

that the witness had already described what he saw and was only asking 

whether his viewing of the tape before trial allowed him to refresh his 

recollection of the traffic stop. 

The best evidence rule provides, “To prove the content of a writing, 

recording, or photograph, the original writing, recording or photograph is 

required, except as otherwise provides in these rules, by other rules 

prescribed by the Supreme Court, or by statute.” Pa.R.E. 1002. Appellant 

relies on Commonwealth v. Lewis, 623 A.2d 355 (Pa.Super. 1993), in 

support. Lewis involved a retail theft trial. Therein, security footage 

captured the defendant and another individual shoplifting inside Sears 

electronic department. A store security guard apprehended the men and 

contacted local police. At trial, the police officer who responded testified 

with respect to what he viewed on the surveillance tape. In contrast to this 

matter, the officer did not personally observe the acts. We ruled that the 

failure to introduce the tape violated the best evidence rule. 

This case is easily distinguishable since the officer personally took part 

in the traffic stop and viewed the incident himself. The best evidence rule 
J-A35036-14 

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was not implicated. Compare Lewis, supra at 359 (“Officer Barclay had 

viewed the tape; nevertheless, he did not have first-hand knowledge of 

Appellant's alleged act of theft; rather, whatever knowledge he possessed 

was gained from his viewing of the videotape. Thus, the original tape should 

have been produced.”); see also Pa.R.E. 614 (“A witness may use a writing 

or other item to refresh memory for the purpose of testifying while testify, or 

before testifying.”). 

Appellant’s penultimate issue relates to the discretionary aspects of his 

sentence. To adequately preserve a discretionary sentencing claim, the 

defendant must present the issue in either a post-sentence motion, or raise 

the claim during the sentencing proceedings. Commonwealth v. 

Cartrette, 83 A.3d 1030, 1042 (Pa.Super. 2013) (en banc). Further, the 

defendant must “preserve the issue in a court-ordered Pa.R.A.P. 1925(b) 

concise statement and a Pa.R.A.P. 2119(f) statement.” Id. Importantly, 

“[t]here is no absolute right to appeal when challenging the discretionary 

aspect of a sentence.” Id. “[A]n appeal is permitted only after this Court 

determines that there is a substantial question that the sentence was not 

appropriate under the sentencing code.” Id. 

Appellant preserved his issue in his motion to modify his sentence and 

his Pa.R.A.P. 1925(b) statement. However, he has failed to include a 

Pa.R.A.P. 2119(f) statement in his brief. Nonetheless, the Commonwealth 

has not objected to the absence of a Pa.R.A.P. 2119(f) statement. 
J-A35036-14 

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Accordingly, we do not find waiver on that basis. See Commonwealth v. 

Stewart, 867 A.2d 589 (Pa.Super. 2005). 

Appellant acknowledges that the sentences at each count were within 

the sentencing guidelines. Nevertheless, he maintains that the court failed to 

give sufficient weight to his difficult upbringing and the short period in which 

the drug enterprise operated. Thus, he maintains that his twenty-to-forty 

year sentence was excessive. 

This Court has previously commented on the disparity in our 

jurisprudence governing determining substantial questions. See 

Commonwealth v. Dodge, 77 A.3d 1263, 1272 n.8 (Pa.Super. 2013). 

There, we also discussed that a bald excessiveness claim does not present a 

substantial question, but an excessiveness challenge is not per se precluded 

from raising a substantial question for review. We noted that claims 

pertaining to the sentencing court’s failure to consider or inadequately 

considering facts of record had been held in some cases as not presenting a 

substantial question. Id. Yet, in a number of other cases, this Court has 

found that an allegation that a sentencing court’s sentence was excessive 

because it did not consider mitigating factors presented a substantial 

question. Id. (citing Commonwealth v. Perry, 883 A.2d 599, 602 

(Pa.Super. 2005)). In light of these apparent inconsistencies, we decline to 

find that Appellant has not presented a substantial question. 
J-A35036-14 

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When considering a discretionary aspects of sentencing claim, we 

analyze the sentencing court’s decision under an abuse of discretion 

standard. Dodge, supra at 1274. In conducting this review, we are guided

by the statutory requirements of 42 Pa.C.S. § 9781(c) and (d). Id. Section 

9781(c) provides that this Court shall vacate a sentence and remand under 

three circumstances. Relevant hereto is if the sentence is within the 

sentencing guidelines, “but the case involves circumstances where the 

application of the guidelines would be clearly unreasonable[.]” 42 Pa.C.S. 

§ 9781(c)(2). In addition, we consider: 

(1) The nature and circumstances of the offense and the history 

and characteristics of the defendant. 

(2) The opportunity of the sentencing court to observe the 

defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission. 

42 Pa.C.S. § 9781(d). 

In the present case, the sentencing court imposed concurrent 

sentences on seven counts and consecutive sentences on an additional nine 

counts. These sentences were within the standard range of the sentencing 

guidelines. It considered that Appellant headed a large-scale drug operation 

and that heroin addiction had devastated the community. The court noted 

that Appellant had previously been on probation but continued to pursue 

criminal activity. It acknowledged Appellant’s troubled family life and past 
J-A35036-14 

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drug history. The court highlighted that Appellant knew the serious effects 

of heroin addiction insofar as he did not use the drug, but still sold it, and 

took advantage of vulnerable individuals. It also found that he exhibited no 

remorse. Finally, the court considered a presentence investigation report. 

It is evident from the record that the sentencing court considered the 

appropriate guidelines and mitigating and aggravating facts in constructing 

its sentence. The reasons given for Appellant’s sentence are sound. The 

sentence imposed is not clearly unreasonable; therefore, the court did not 

abuse its discretion. 

Lastly, Appellant contends that his sentence is unconstitutional under 

Alleyne v. United States, 133 S.Ct. 2151 (2013). Alleyne held that facts 

that increase a defendant’s mandatory minimum sentence are elements of 

the crime and must be proven beyond a reasonable doubt or a defendant’s 

jury trial right is violated. Accordingly, many mandatory minimum 

sentencing statutes in Pennsylvania are no longer constitutionally sound. 

See Commonwealth v. Watley, 81 A.3d 108 (Pa.Super. 2013) (en banc). 

More recently, this Court has held that the statute governing drug 

mandatories, at issue here, is unconstitutional as a whole and that a 

sentence under such a provision is illegal.6 Commonwealth v. Cardwell, 

____________________________________________ 

6

 Writing solely for myself herein, I note that I have disagreed with the 

rationale expressing that our mandatory minimum sentencing statutes are 

not severable. See Commonwealth v. Bizzel, 2014 PA Super 267 (Bowes, 

(Footnote Continued Next Page) 
J-A35036-14 

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2014 PA Super 263; see also Commonwealth v. Thompson, 93 A.3d 478 

(Pa.Super. 2014) (defendant entitled to resentencing pursuant to Alleyne

where the weight of the drugs was not determined by a jury beyond a 

reasonable doubt). Accordingly, Appellant is entitled to sentencing relief.

Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 1/9/2015 

(Footnote Continued) _______________________ 

J., concurring). I continue to adhere to that view. Nonetheless, even absent 

the severability decisions relative to the mandatory sentencing statutes, 

Appellant’s sentence does not fall within the Alleyne harmless error analysis 

posited by myself in Bizzel or the majority in Commonwealth v. Watley, 

81 A.3d 108 (Pa.Super. 2013) (en banc). Phrased differently, the jury 

verdict in this case does not make it clear that it determined that Appellant 

possessed the requisite weight of heroin beyond a reasonable doubt. See 

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