J-S58034-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SALINA MICHELLE GARLAND 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 719 WDA 2019

Appeal from the Judgment of Sentence Entered May 31, 2017

In the Court of Common Pleas of Cambria County Criminal Division at 

No(s): CP-11-CR-0002357-2015

BEFORE: PANELLA, P.J., BENDER, P.J.E., and DUBOW, J.

MEMORANDUM BY DUBOW, J.: FILED DECEMBER 19, 2019

Appellant, Salina Michelle Garland, appeals from the Judgment of 

Sentence imposed by the Cambria County Court of Common Pleas after a jury 

convicted her of Manufacture, Delivery, or Possession with Intent to 

Manufacture or Deliver a Controlled Substance; Intentional Possession of a 

Controlled Substance; and Criminal Use of a Communication Facility.

1

Appellant challenges the sufficiency and weight of the evidence in support of 

her convictions, and the discretionary aspects of her sentence. After careful 

review, we affirm.

The relevant facts, as gleaned from the certified record, are as follows. 

Cambria County Drug Task Force (“CCDTF”) Agent Thomas Keirn arranged a 

controlled narcotics purchase, in which Undercover Narcotics Agent Thomas 

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1 35 P.S. § 780-113(a)(30); 35 P.S. § 780-113(a)(16); and 18 Pa.C.S. § 

7512(a), respectively. 
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Moore accompanied a confidential informant (“CI”) to purchase heroin from 

Appellant. 

On March 4, 2015, the CI called Appellant to purchase 10 stamp bags 

of heroin. They agreed to complete the purchase at a residence located at 112 

Sheridan Street in Johnstown. Agent Moore drove the CI to the residence and 

gave the CI $100 to make the purchase.2 When they entered the residence’s 

living room, Appellant requested the $100, which the CI gave to her. Appellant 

then made a phone call. She advised the CI and Agent Moore that she could 

provide only 9 stamp bags of heroin; they agreed to purchase 9 bags for the 

$100.

Approximately 20 minutes after Appellant’s phone call, a white Kia 

automobile arrived at 112 Sheridan Street. The individual in the Kia entered 

the residence for a couple minutes. After the individual left, Appellant gave 

the CI 8 bags of heroin; Appellant kept one bag as additional payment.

The CI and Agent Moore then left the residence. The CI gave Agent 

Moore the 8 bags of heroin, which were sent to the Pennsylvania State Police 

Crime Lab for testing. A forensic analysis revealed that the 8 bags contained 

a total of 0.14 grams of heroin. 

Appellant was arrested in November 2015. Her jury trial on the above 

charges commenced on March 15, 2017. At trial, the Commonwealth 

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2 Agent Keirn photocopied five $20 bills to record the money’s serial numbers. 

He then gave the $100 to Agent Moore for the controlled purchase. 
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presented the testimony of, inter alia, the agents and detectives involved in 

the March 4, 2015 controlled narcotics purchase—Agent Moore, Agent Keirn, 

Detective Bernard, and Detective Arcurio.3 The jury convicted Appellant of the 

above offenses. The trial court ordered the preparation of a Presentence 

Investigation (“PSI”) Report prior to sentencing. 

On May 31, 2017, after hearing testimony and argument from counsel, 

and reviewing the PSI Report, the court sentenced Appellant to an aggregate 

term of 16 to 120 months of incarceration. Appellant initially filed a pro se

Post-Sentence Motion, which the court improperly treated as a petition filed 

under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. After this Court 

reinstated Appellant’s post-sentence rights nunc pro tunc, newly appointed 

counsel filed a timely Post-Sentence Motion. The court denied Appellant’s 

Motion.

Appellant filed a timely Notice of Appeal. Both Appellant and the trial 

court complied with Pa.R.A.P. 1925.

Appellant presents the following issues for our review, reordered for 

ease of disposition:

1. The Appellant’s conviction for one count of Intentional 

Possession of Controlled Substance by a Person Not Registered 

(35 Pa.C.S.A. § 780-113(A)(16) (M)[)]; Manufacture, Delivery, 

or Possession [w]ith Intent to Manufacture or Deliver (35 

Pa.C.S.A. § 780[]-113(A)(30)(F)[)]; and Criminal Use of a 

Communication Facility (18 Pa.C.S.A. § 7512(A) (F-2)[)] was 

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3 The CI did not testify in order to protect his/her identity.
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against the weight and sufficiency of evidence presented at trial 

by the Commonwealth.

2. The Appellant’s sentence was excessive in light of the evidence 

presented at trial, which shows that the drugs allegedly in her 

possession was more synonymous with possession as opposed 

to delivery.

Appellant’ Br. at 5.

In her first issue, Appellant challenges the sufficiency of the evidence 

supporting her convictions. “A claim challenging the sufficiency of the evidence 

is a question of law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 

2000). “We review claims regarding the sufficiency of the evidence by 

considering whether, viewing all the evidence admitted at trial in the light 

most favorable to the verdict winner, there is sufficient evidence to enable the 

fact-finder to find every element of the crime beyond a reasonable doubt.” 

Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (internal 

quotation marks and citations omitted). “Further, a conviction may be 

sustained wholly on circumstantial evidence, and the trier of fact—while 

passing on the credibility of the witnesses and the weight of the evidence—is 

free to believe all, part, or none of the evidence.” Id. “In conducting this 

review, the appellate court may not weigh the evidence and substitute its 

judgment for the fact-finder.” Id.

To sustain a conviction for Intentional Possession of a Controlled 

Substance, the Commonwealth must prove that Appellant “[k]nowingly or 

intentionally possess[ed] a controlled or counterfeit substance[.]” 35 P.S. 

§ 780-113(a)(16).
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To sustain a conviction for Manufacture, Delivery, or Possession with 

Intent to Manufacture or Deliver a Controlled Substance, the Commonwealth 

must prove, inter alia, that a defendant delivered a controlled substance

without proper authorization. 35 P.S. § 780-113(a)(30).4 Delivery is defined 

as “the actual, constructive, or attempted transfer from one person to another 

of a controlled substance[.]” 35 PS. § 780–102. “A defendant actually 

transfers drugs whenever [s]he physically conveys drugs to another 

person.” Commonwealth v. Murphy, 844 A.2d 1228, 1234 (Pa 2004). 

“Section 780–113(a)(30) does not require that a party make a profit, it simply 

prohibits ‘delivery.’” Commonwealth v. Morrow, 650 A.2d 907, 912 (Pa. 

Super. 1994). Additionally, “[t]he amount of the controlled substance is not 

‘crucial to establish an inference of possession with intent to deliver[.]’”

Commonwealth v. Ratsamy, 934 A.2d 1233, 1237 (Pa. Super. 2007) 

(citation omitted). The court views the totality of circumstances when 

evaluating whether a defendant committed Manufacture, Delivery, or 

Possession with Intent to Manufacture or Deliver a Controlled Substance. Id.

The Crimes Code has defined the offense of Criminal Use of a 

Communication Facility, in relevant part, as follows:

A person commits a felony of the third degree if that person uses 

a communication facility to commit, cause or facilitate the 

commission or the attempt thereof of any crime which constitutes 

a felony under this title or under the act of April 14, 1972 (P.L. 

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4 A violation of 35 P.S. § 780-113(a)(30) involving heroin is a felony. 35 P.S. 

§ 780-113(f).
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233, No. 64) known as The Controlled Substance, Drug, Device 

and Cosmetic Act. Every instance where the communication 

facility is utilized constitutes a separate offense under this section.

18 Pa.C.S. § 7512(a). The term “communication facility” includes 

telephones. Id. at Section 7512(b). To sustain a conviction for Criminal Use 

of a Communication Facility, “the Commonwealth must prove beyond a 

reasonable doubt that: (1) Appellant knowingly and intentionally used a 

communication facility; (2) Appellant knowingly, intentionally or recklessly 

facilitated an underlying felony; and (3) the underlying felony 

occurred.” Commonwealth v. Moss, 852 A.2d 374, 381 (Pa. Super. 2004).

Instantly, the Commonwealth presented evidence that on March 4, 

2015, the CI called Appellant on a telephone, met with Appellant, provided 

money to Appellant, obtained heroin from Appellant, and turned the heroin 

over to the police. Agent Moore observed the CI make the phone call to 

Appellant and was present during the heroin transaction, and offered his 

testimony at trial. Agent Keirn also testified about arranging the controlled 

buy with the CI and Appellant, his witnessing the CI call Appellant on March 

4, 2015 to arrange the heroin transaction, and his surveillance of 112 Sheridan 

Street on March 4, 2015. 

Viewing the evidence in the light most favorable to the Commonwealth, 

the evidence was sufficient to prove Intentional Possession of a Controlled 

Substance, Manufacture, Delivery, or Possession with Intent to Manufacture 
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or Deliver a Controlled Substance, and Criminal Use of a Communications 

Facility. Thus, Appellant’s sufficiency challenge has no merit.

5

In her second issue, Appellant challenges the discretionary aspects of 

her sentence. Appellant’s Br. at 9-11.

Challenges to the discretionary aspects of sentencing are not 

automatically reviewable as a matter of right. Commonwealth v. Hunter, 

768 A.2d 1136, 1144 (Pa. Super. 2001). Prior to reaching the merits of a 

discretionary sentencing issue, we must determine: (1) whether appellant has 

filed a timely notice of appeal; (2) whether the issue was properly preserved 

at sentencing or in a motion to reconsider and modify sentence; (3) whether 

appellant’s brief sufficiently addresses the challenge in a statement included 

pursuant to Pa.R.A.P. 2119(f); and (4) whether there is a substantial question 

that the sentence appealed from is not appropriate under the Sentencing 

Code. Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006). 

In the instant case, Appellant met the first three elements by filing a 

timely Notice of Appeal, preserving the issue in a Post-Sentence Motion, and 

including a Statement of Reasons Relied Upon for Allowance of Appeal 

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5 Appellant also asserts that “the weight of evidence presented by the 

Commonwealth at trial did not warrant [her] convictions, even if all evidence 

presented by the Commonwealth was believed by the [j]ury.” Appellant’s Br. 

at 16, 21. This argument is a sufficiency challenge. See Commonwealth v. 

Thompson, 106 A.3d 742, 758 (Pa. Super. 2014) (noting that a weight 

challenge questions the evidence that the jury chose to believe). Accordingly, 

her purported weight challenge merits no relief.
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pursuant to Pa.R.A.P. 2119(f). Before reaching the merits of Appellant’s 

argument, we must review Appellant’s Rule 2119(f) Statement to determine 

if he has presented a substantial question for our review. 

Whether a substantial question has been raised regarding a 

discretionary sentence is determined on a case-by-case 

basis. Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). “A 

substantial question exists only when the appellant advances a colorable 

argument that the sentencing judge's actions were either: (1) inconsistent 

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

fundamental norms which underlie the sentencing process.” Id. (citation and 

quotation omitted). 

This Court has held that 

the Rule 2119(f) statement must specify where the sentence falls 

in relation to the sentencing guidelines and what particular 

provision of the Code is violated (e.g., the sentence is outside the 

guidelines and the court did not offer any reasons either on the 

record or in writing, or double-counted factors already 

considered). Similarly, the Rule 2119(f) statement must specify 

what fundamental norm the sentence violates and the manner in 

which it violates that norm (e.g., the sentence is unreasonable or 

the result of prejudice because it is 500 percent greater than the 

extreme end of the aggravated range). 

Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000).

In the instant case, without referencing the sentencing guidelines at all, 

“what particular provision of the Code is violated,” or “what fundamental norm 

the sentence violates and the manner in which it violates that norm,” Appellant 

avers in her Rule 2119(f) Statement that her aggregate sentence of 16 to 120 
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months’ incarceration was unduly harsh and an abuse of discretion because, 

inter alia, she had been compliant with her probation, appeared for all 

hearings, and had taken part in drug treatment. Appellant’s Br. at 9. She 

essentially disagrees with the court’s consideration of mitigating factors. 

This Court has consistently held that an allegation that a sentencing 

court “did not adequately consider certain factors does not raise a substantial 

question that the sentence was inappropriate.” Commonwealth v. CruzCenteno, 668 A.2d 536, 545 (Pa. Super. 1995) (citation and internal 

quotation marks omitted); see also Commonwealth v. Rhoades, 8 A.3d 

912, 918-19 (Pa. Super. 2010) (stating “an allegation that the sentencing 

court failed to consider mitigating factors generally does not raise a substantial 

question for our review”).6

Appellant has failed to raise a substantial question. Accordingly, we 

decline to review Appellant’s challenge to the discretionary aspects of her 

sentence.

Judgment of Sentence affirmed.

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6 Moreover, where the sentencing court had the benefit of a PSI, we can 

assume the sentencing court “was aware of relevant information . . . and 

weighed those considerations along with mitigating statutory factors.” 

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/19/2019