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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CURTIS LEE :
:
Appellant : No. 1149 EDA 2022
Appeal from the Judgment of Sentence Entered July 20, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006869-2016
BEFORE: DUBOW, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY DUBOW, J.: FILED JULY 5, 2023
Appellant Curtis Lee appeals pro se from the Judgment of Sentence
entered in the Philadelphia Court of Common Pleas following his conviction
after a bench trial of Possession with Intent to Deliver (PWID), Knowingly or
Intentionally Possessing a Controlled Substance by a Person Not Registered,
and Conspiracy to PWID1 in connection with his role as a look-out for
individuals selling illicit drugs in Kensington. We affirm.
A.
We glean the following relevant facts and procedural history from the
certified record and the Pa.R.A.P. 1925(a) Opinion, authored by the Hon. Scott
DiClaudio.2 On the evening of June 2, 2016, Philadelphia Police Officer Robert
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1 35 P.S. §§780-113(A)(30) and (A)(16), 18 Pa.C.S. § 903(a)(1), respectively.
2 The Hon. Daniel McCaffery, who presided over Appellant’s waiver trial, has
not participated in the consideration or disposition of this Appeal.
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Killman observed Appellant standing on the corner of Weymouth Street and
Allegheny Avenue. Xavier Rosa and Julio Martinez were standing
approximately 50 feet away selling illicit drugs. Officer Killman observed that
when a marked police vehicle would come down Allegheny Avenue, Appellant
would shout “Police on Allegheny Avenue.”3 When police vehicles left the area,
Appellant would shout “Tambien” to signal that the area was “all clear.”4
Officer Killman also observed Rosa and Martinez conduct hand-to-hand drug
transactions with four different customers in which they handed Rosa or
Martinez cash in exchange for small items. Following each transaction, police
officers stopped the customers and recovered cocaine. After arresting the
customers, police officers arrested Appellant, Martinez, and Rosa and
recovered heroin, crack, powdered cocaine, and cash from Martinez and
Rosa’s pockets. Police Officer Donald Vandermay arrested Appellant and
recovered $98 from Appellant’s pocket.
On June 8, 2017, after waiving his right to a jury,5 Appellant proceeded
to a bench trial at which Officer Killman testified. Appellant presented no
evidence. The parties entered stipulations regarding the property and cash
seized from the customers, Martinez, Rosa, and Appellant. The court found
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3 Tr. Ct. Op., 8/15/22, at 2.
4 Id.
5 The trial court conducted a thorough jury waiver colloquy with Appellant,
and Appellant acknowledged, among other things, that he was pleased with
his counsel’s representation. See N.T. Trial, 6/8/17, at 4-8.
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Appellant guilty of the above offenses. The court ordered a pre-sentence
investigation (“PSI”) and scheduled sentencing for September 8, 2017.6
On July 20, 2018, the court held a sentencing hearing at which, inter
alia, Appellant’s attorney agreed that the Offense Gravity Score (“OGS”) was
six. The court acknowledged the PSI, which included multiple prior felony
convictions incurred prior to 1997, and sentenced Appellant to a standard
range sentence of two to five years’ incarceration followed by five years’
probation. Appellant timely filed a post-sentence motion which the court
denied.
Following various post-conviction proceedings, including the April 7,
2022 reinstatement of his direct appeal rights nunc pro tunc, Appellant filed a
timely notice of appeal. Both Appellant and the court compiled with Pa.R.A.P.
1925. Appellant presents the following Statement of Questions Involved:
Did the trial court erred and/or abuse its discretion when it denied
and dismissed all of appellant’s post-trial/post-sentence motions
without a hearing or any opinions where Appellant suffered from
mental illness prior to a non-jury waiver trial and his counsel failed
to alert the trial court of the seriousness documented diagnoses
mental illness resulting in waiver of Appellant’s rights to not be
trail while incompetent nor waive his rights knowingly, intelligent,
and voluntary of jury trial and where the Commonwealth did not
call any of its witness to preliminary hearing nor trial to be
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6 On September 8, 2017, the court ordered a mental health evaluation for
Appellant to determine competency, and deferred sentencing. On November
17, 2017, the court found Appellant incompetent and, pursuant to Section 304
of the Mental Health Procedures Act, committed Appellant for 30 days to the
Detention Center Forensic Unit. The court twice re-committed Appellant to
the Forensic Unit after holding additional hearings. Appellant’s trial counsel,
Douglas Dolfman, Esq., withdrew his representation on April 20, 2018, and
Rania Major, Esq., entered her appearance as new counsel on July 20, 2018.
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confronted or cross-examined about the evidence both witness
produced and where Appellant did not meet any element of the
crime of (PWID) and where the Commonwealth produced known
false evidence property receipt C-1 (money), property receipt C-
2 (drugs), and where the Commonwealth intentionally did not
inform Appellant that there was a (bad cop) investigator who
fabricated a false police report resulting in a Brady violation, all
in order to cover up police brutality where the arresting officer
Vandermay who beat and broke Appellant’s bones is totally
missing from Appellant’s case and where Appellant’s attorney
Douglas Dolfman knew the entire true story of Appellant being
brutally beaten up, where attorney Dolfman filed in his Summary
of Offense Complaint but secretly withholds the true story at trial
intentionally misrepresenting and incriminating his own client at
trial, and where no attorney would file any post-trial/post-sentence motions demonstrating his own intentional
misrepresentation leading to disbarment.
Appellant’s Br. at 4 (verbatim; emphasis in original).
B.
Similar to the lack of clarity presented in the above Statement of
Question Involved, Appellant’s 56-page pro se brief is an amalgamation of
numerous complaints and legal concepts, with most arguments difficult to
discern and presented in a manner which does not comport with our briefing
rules.7 While our review is significantly hampered, we are nonetheless able
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7 For instance, the Statement of Questions Involved, quoted above, fails to
“state concisely the issues to be resolved,” as required by Pa.R.A.P. 2116(a).
In addition, Appellant fails to “set forth verbatim” the text of the order from
which he seeks review as required by Rule 2115(a). The Summary of
Argument is comprised primarily of complaints about trial counsel combined
with allegations of police misconduct. It does not comport with Rule 2118,
which requires “a concise, but accurate, summary of the arguments presented
in support of the issues in the statement of questions involved.” Pa.R.A.P
2118. In addition, Appellant has included two sections under headings labeled
“Argument.”
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to discern Appellant’s challenges to the sufficiency and weight of the evidence
supporting his Conspiracy and PWID convictions8 and a claim that the court
applied the wrong OGS.
A. Sufficiency of the Evidence
Appellant challenges the sufficiency of the evidence supporting his
Conspiracy and PWID convictions when he asserts that he “never that day
made any contact with any drug seller nor made any drug sales nor passed
anything to anybody, [and] Appellant was never even seen talking to anybody
that day.” Appellant’s Br. at 35. He also asserts that the Commonwealth “did
not demonstrate no indica [sic], nor evidence, whatsoever that the Appellant
spoke with, conspired with or knew any of the co-defendant[s], where
Appellant was 60 yards away from the alleged co-defendant at a church food
bank.” Id. at 38. Appellant’s arguments have no merit.
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8 Appellant’s first Argument section and much of his second argument section
is comprised of various complaints about trial counsel. See Appellant’s Br. at
12-35. Except under special circumstances not presented here, ineffective
assistance of counsel claims may be raised only on collateral review with the
filing of a petition pursuant to the Post Conviction Review Act, 42 Pa.C.S. §§
9542-46. Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013). We,
thus, decline to address Appellant’s claims raised in this direct appeal that are
based solely on his complaints about trial counsel’s stewardship.
In addition, although Appellant attempts to raise Brady and confrontation
clause violations, as well as claims asserting prosecutorial and police
misconduct, Appellant’s arguments are incomprehensible. As a result, we
conclude his arguments are undeveloped and, therefore, waived.
Commonwealth v. Charleston,
94 A.3d 1012, 1021 (Pa. Super. 2014)
(concluding that undeveloped arguments are waived).
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“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.
Conspiracy is defined in our Crimes Code as follows:
(a) Definition of conspiracy. - A person is guilty of conspiracy with
another person or persons to commit a crime if with the intent of
promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or
one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to
commit such crime; or
(2) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt or
solicitation to commit such crime.
18 Pa.C.S. § 903(a).
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“In order to prove the existence of a criminal conspiracy, the
Commonwealth must demonstrate that the defendant: (1) entered 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. Chambers, 188 A.3d 400, 409–10
(Pa. 2018) (citation omitted). “At the heart of every conspiracy lies the
common understanding or agreement between the actors. Implicit in
any conspiracy is proof that an accused agrees to participate in the alleged
criminal activity.”
Id. at 410 (citations, quotation marks, and ellipses
omitted). Significantly, “[e]ven if the conspirator did not act as a principal in
committing the underlying crime, he is still criminally liable for the actions of
his co-conspirators in furtherance of the conspiracy.” Commonwealth v.
Johnson,
719 A.2d 778, 785 (Pa. Super. 1998) (en banc).
To convict a person of PWID, the Commonwealth must prove beyond a
reasonable doubt that the defendant possessed a controlled substance and
did so with the intent to deliver it. 35 P.S. § 780-113(a)(30). “The intent to
deliver may be inferred from an examination of the facts and circumstances
surrounding the case. Factors to consider whether the defendant possessed
the drugs with the intent to deliver include the particular method of packaging,
the form of the drug, and the behavior of the defendant.” Commonwealth
v. Conaway, 791 A.2d 359, 362–63 (Pa. Super. 2002) (citations omitted).
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With respect to conspiracy to PWID, it is most often proven with
circumstantial evidence. Commonwealth v. Spotz, 716 A.2d 580, 592 (Pa.
1998).
An explicit or formal agreement to commit crimes can seldom, if
ever, be proved and it need not be, for proof of a criminal
partnership is almost invariably extracted from the
circumstances that attend its activities. Indeed,
a conspiracy may be proven inferentially by showing the relation,
conduct, or circumstances of the parties, and the overt acts of
alleged co-conspirators are competent as proof that a criminal
confederation has in fact been formed.
Chambers, 188 A.3d at 410 (emphasis added) (citations and quotation marks
omitted).
The circumstances upon which the conspiracy may be proven include
“the relation between the parties, knowledge of and participation in the crime,
and the circumstances and conduct of the parties surrounding the criminal
episode.” Commonwealth v. Feliciano, 67 A.3d 19, 26 (Pa. Super. 2013)
(en banc) (citation omitted). See also Commonwealth v. Bricker,
882 A.2d
1008, 1017-18 (Pa. Super. 2005) (affirming PWID conspiracy conviction
where overt act was committed by co-conspirator and not the defendant);
Commonwealth v. McCall,
911 A.2d 992, 997 (Pa. Super. 2006) (affirming
PWID and conspiracy convictions where the appellant took “an active role in
the illicit enterprise” by acting as a lookout even though he did not “physically
handle the drugs transacted.”).
In addressing Appellant’s sufficiency challenge, the trial court observed
the following:
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At trial, Officer Killman testified that he witnessed [Appellant]
yelling towards Martinez and Rosa “Tambien” to signal that the
area was “all clear” or “Police on Allegheny Avenue” when a
marked police vehicle would come down Allegheny Avenue. N.T.
Trial at 13. Officer Killman also observed four different hand-tohand transactions between Rosa and/or Martinez and another
person in which U.S. currency was exchanged for small items
retrieved from Rosa and Martinez’s pants pockets. Id. at 13-16.
All four buyers were stopped and arrested and from all were
recovered either cocaine or heroin. Rosa and Martinez were also
arrested. They had U.S. currency as well as cocaine and/or heroin
on their person.
To convict [Appellant] of conspiracy, the Commonwealth can show
through reasonable inferences arising from the facts and
circumstances that a tacit agreement exists between the coconspirat[ors]. Commonwealth v. Perez, 931 A.2d 703, 708
(Pa. Super. 2007). Thus, while [Appellant] was not witnessed
participating in the hand-to-hand transactions and no controlled
substances were recovered from his person, his actions of
informing Martinez and Rosa of the presence of marked police cars
aided both in the commission of the crime. . . . Thus, the evidence
is sufficient to uphold the conviction of Conspiracy PWID.
Trial Ct. Op., 8/15/22, at 11-12.
Our review of the record confirms that the Commonwealth presented
sufficient evidence to support Appellant’s convictions. Appellant stipulated
that the drugs the police officers seized from Martinez and Rosa and their
customers were cocaine and heroin. N.T., at 21-25. In addition, Officer
Killman testified to his surveillance of Appellant, Martinez, and Rosa, and the
circumstances leading up to the arrest of all three. With respect to Appellant’s
participation as a look-out, Officer Killman’s testimony established that
Appellant very clearly shouted either “Police on Allegheny” or “Tambien,”
meaning “all clear,” to apprise Martinez and Rosa of police activity in the area.
In light of the above evidence, it was reasonable for the fact-finder to infer
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that Appellant acted as part of the drug-selling criminal enterprise. Thus, in
light of our standard of review, we conclude the Commonwealth presented
sufficient evidence to support Appellant’s convictions.
B. Weight of the Evidence
Appellant also purports to challenge the weight of the evidence
supporting his convictions by asserting that Officer Killman presented “false
evidence and false charges.” Appellant’s Br. at 40.9 No relief is warranted.
When considering challenges to the weight of the evidence, we apply
the following precepts. “The weight of the evidence is exclusively for the
finder of fact, who is free to believe all, none[,] or some of the evidence and
to determine the credibility of the witnesses.” Commonwealth v. Talbert,
129 A.3d 536, 545 (Pa. Super. 2015) (citation omitted). Resolving
contradictory testimony and questions of credibility are matters for the finder
of fact. Commonwealth v. Hopkins,
747 A.2d 910, 917 (Pa. Super. 2000).
It is well-settled that we cannot substitute our judgment for that of the trier
of fact. Talbert,
129 A.3d at 546.
Moreover, appellate review of a weight claim is a review of the trial
court’s exercise of discretion in denying the weight challenge raised in the
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9 Appellant also alleges that Officer Killman’s testimony was “hearsay.”
Appellant’s Br. at 42. Appellant does not indicate where in the record he
asserted a hearsay objection at his trial. Accordingly, it is waived. Pa.R.A.P.
302(a) (issues not raised before the trial court are waived). See also
Commonwealth v. Parker, 104 A.3d 17, 29 (Pa. Super. 2014) (observing
that specific objection to testimony as hearsay is waived on appeal if not
preserved at trial).
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post-sentence motion; this Court does not review the underlying question of
whether the verdict is against the weight of the evidence. See id. at 545-46.
“One of the least assailable reasons for granting or denying a new trial is the
lower court’s conviction that the verdict was or was not against the weight of
the evidence and that a new trial should be granted in the interest of justice.”
Id. at 546 (citation omitted).
Furthermore, “[i]n order for a defendant to prevail on a challenge to the
weight of the evidence, the evidence must be so tenuous, vague and uncertain
that the verdict shocks the conscience of the court.” Id. (citation omitted).
As our Supreme Court has made clear, reversal is only appropriate “where the
facts and inferences disclose a palpable abuse of discretion[.]”
Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (citations and
emphasis omitted).
Here, after reviewing the evidence and stipulations that were presented
at trial, the trial court concluded that the verdict did “not shock the
conscience.” Trial Ct. Op., at 14. Notably, the court observed “[n]o evidence
was presented to show that Officer Killman was not credible.” Id. at 15.
Our review confirms that the trial court did not abuse its discretion in
denying Appellant’s post-sentence motion. Appellant essentially asks this
Court to reweigh the evidence and find Officer Killman’s testimony not
credible. Our standard of review does not allow us to do so. Moreover, like
the trial court, our conscience is not shocked by the verdict. Accordingly,
Appellant is entitled to no relief on his weight challenge.
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C. OGS
Appellant asserts that the trial court erred in applying an OGS of 6
instead of 3 and as a result imposed an excessive sentence. Appellant’s Br.
at 51-52. Without acknowledging that his counsel agreed that the proper OGS
was 6, Appellant asserts that the Commonwealth misinformed the court that
the OGS was 6 and claims, among other things, that the probation department
had indicated the OGS was 3. Id.
“A claim that the sentencing court used an incorrect OGS is a challenge
to the discretionary aspects of one’s sentence.” Commonwealth v.
Williams, 151 A.3d 621, 625 (Pa. Super. 2016) (citation omitted). An
appellant raising such a challenge is not entitled to review as of right; rather,
a challenge in this regard is properly viewed as a petition for allowance of
appeal. 42 Pa.C.S. § 9781(b); Commonwealth v. Tuladziecki,
522 A.2d
17, 18-19 (Pa. 1987); Commonwealth v. Buterbaugh,
91 A.3d 1247, 1265
(Pa. Super. 2014).
In order to obtain this Court’s review, an appellant challenging the
discretionary aspects of his sentence must comply with the following
requirements: (1) file a timely notice of appeal; (2) preserve the issue at
sentencing or in a motion to reconsider and modify sentence; (3) include
within his brief a concise statement of the reasons relied upon for allowance
of appeal as required by Pa.R.A.P. 2119(f); and (4) raise a substantial
question that the sentence is inappropriate under the Sentencing Code.
Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa. Super. 2013).
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Here, Appellant timely appealed and preserved his challenge in a post-
sentence motion to modify sentence. Appellant has not included a Pa.R.A.P.
2119(f) Statement in his brief, however, the Commonwealth has not objected
so we proceed to determine whether Appellant has raised a substantial
question.10
Appellant’s allegation that the sentencing court applied an incorrect OGS
resulting in an excessive sentence raises a substantial question.
Commonwealth v. Archer, 722 A.2d 203, 210-11 (Pa. Super. 1998) (en
banc). Nevertheless, we conclude Appellant has waived his claim for the
following reasons.
First, Appellant has not supported his assertion that the Commonwealth
provided misinformation to the court. See Pa.R.A.P. 2119(c) (requiring
reference to the record).11 More importantly, Appellant has not informed this
Court how the trial court erred in rendering its calculation of an OGS of six.
Rather, he baldly asserts that the sentencing court “never even reviewed the
[post-sentence] motion” and, thus, abused its discretion. Appellant’s Br. at
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10 See Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004)
(noting that “when the appellant has not included a Rule 2119(f) statement
and the appellee has not objected, this Court may ignore the omission and
determine if there is a substantial question that the sentence imposed was not
appropriate, or enforce the requirements of Pa.R.A.P. 2119(f) sua sponte, i.e.,
deny allowance of appeal.”) (citation omitted).
11 Although Appellant refers to a copy of a cover sheet purporting to be from
the probation department, that document is largely illegible, and we are
unable to discern any reference to an OGS.
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51. Because Appellant has not presented a developed argument directing our
attention to an error in the trial court’s analysis, and this Court may not
develop an argument for Appellant, we conclude he has waived his
challenge.12 See Commonwealth v. Freeman, 128 A.3d 1231, 1249 (Pa.
Super. 2015) (observing that “[w]hile this Court may overlook minor defects
or omissions in an appellant's brief, we will not act as his or her appellate
counsel.”) (citation omitted).
In conclusion, applying our standard of review, we conclude the fact-
finder’s verdicts are supported by sufficient evidence and we discern no abuse
of the trial court’s discretion in denying Appellant’s post-trial motion. Further,
Appellant’s challenge to the discretionary aspects of his sentence is waived for
failing to provide a developed argument regarding trial court error.
Accordingly, we affirm Appellant’s Judgment of Sentence.
Judgment of Sentence affirmed.
Judge Murray joins the memorandum.
Judge McCaffery did not participate in the decision.
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12 The trial court also addressed Appellant’s claim that his sentence exceeded
the sentencing guidelines and concluded that the sentence of two to five years
did not exceed sentencing guidelines. Tr. Ct. Op., at 21. The trial court
observed that ”the standard guidelines for a PRS of RFEL and OGS of six is
twenty-seven (27) months to forty (40) months[,]” which is “two years and
three months to three years and four months plus or minus six months.” Tr.
Ct. Op., at 21 and n. 6. Appellant has not addressed the trial court’s finding
except to say that under an OGS of 3, he would have been sentenced to just
twelve to 12 to 18 months’ minimum incarceration. Appellant’s Br. at 52.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/5/2023
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