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[U] Commonwealth v. Kimmel

Superior Court of Pennsylvania

February 12, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
SHAWN EDWARD KIMMEL, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence of March 1, 2013 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0001950-2012

BEFORE: PANELLA, OLSON AND WECHT, JJ.

MEMORANDUM

OLSON, J.

Appellant, Shawn Edward Kimmel, appeals from the judgment of sentence entered on March 1, 2013. We affirm.

The trial court has provided us with a thorough and able summary of the underlying facts. As the trial court explained:

The evidence presented at trial from the Commonwealth's experts established that [Appellant] delivered heroin to a confidential informant [(hereinafter "CI")] on three separate occasions. Each occasion involved a controlled purchase of heroin by the [CI] from [Appellant and each controlled purchase] was monitored and observed by law enforcement authorities. On each occasion, the CI was [strip-searched] to verify that the CI had no controlled substances or money on his/her person. On each occasion, the CI was provided with pre-recorded currency with which to conduct the transaction. Finally, an undercover police officer accompanied the CI on each of the three occasions.
The first controlled buy was conducted on June 12, 2011 in the parking lot of the J&L Trailer Park in Derry Township, Westmoreland County. Chief John Berger of the Ligonier Borough Police Department testified that he, as the undercover officer, and the CI, who had been strip-searched and provided with money, drove to the parking lot of the trailer park. [Chief Berger] testified that he saw [Appellant] come from his trailer, walk to the driver's side of the vehicle in which the CI and [Chief Berger] were traveling, and transfer heroin to the CI in exchange for the pre-recorded currency. Chief Berger identified the seller of the heroin as [Appellant] immediately after the transaction through the use of [Appellant's] JNET driver's license photo. This controlled buy was also monitored by other members of the Westmoreland County Drug Task Force.
The second controlled buy was conducted on August 10, 2011, at the II Brothers Bar on Route 982 in Derry Township, Westmoreland County. Officer Amber Noel of the Ligonier Township Police Department, acting as the undercover officer, accompanied the CI, who had been strip-searched and provided with pre-recorded currency, to the parking lot of the bar. Officer Noel testified that she observed the CI get out of her vehicle, approach [Appellant] in his car, conduct a transaction, and return to the task force vehicle. Officer Noel was able to see the person who provided the heroin to the CI, and immediately identified [Appellant] as that person after the controlled buy through the use of [Appellant's] JNET driver's license photo.
The third controlled buy was conducted on August 14, 2011 again at the II Brothers Bar on Route 982 in Derry Township, Westmoreland County. Officer Robert Hakel of the Ligonier Borough Police Department, acting as the undercover officer, accompanied the CI, who had been strip-searched and provided with pre-recorded currency, to the parking lot of the bar. Officer Hakel testified that he observed the CI get out of their vehicle, approach [Appellant] in his car, conduct a transaction, and return to the task force vehicle. Officer Hakel was able to see the person who provided the heroin to the CI, and [Officer Hakel] identified [Appellant] as that person immediately after the controlled buy through the use of [Appellant's] JNET driver's license photo.

Trial Court Opinion, 7/8/13, at 1-3 (internal footnote omitted).

Appellant was arrested, tried before a jury, and found guilty of three counts of delivery of a controlled substance, three counts of possession of a controlled substance with the intent to deliver, and three counts of possession of a controlled substance.[1] On March 1, 2013, the trial court sentenced Appellant to an aggregate term of three to six years in prison for these convictions. N.T. Sentencing, 3/1/13, at 12-14.

Appellant did not file a post-sentence motion with the trial court. Instead, on March 28, 2013, Appellant filed a timely notice of appeal and the trial court thereafter ordered Appellant to file and serve a concise statement of errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Trial Court Order, 4/3/13, at 1. Appellant complied and listed the following claims in his Rule 1925(b) statement: 1) "the circumstantial evidence presented by the Commonwealth was insufficient to support [Appellant's] conviction[s]" and 2) Appellant "was denied his constitutional right to actually confront his accuser" when "the Commonwealth refused to divulge th[e CI's] identity." Appellant's Rule 1925(b) Statement, 5/20/13, at 1-3.

Now on appeal, Appellant raises the following claim:

1. Was the verdict rendered in the instant case against the weight of the evidence?

Appellant's Brief at 4.

Appellant's weight of the evidence claim is waived, as Appellant failed to raise the claim before the trial court and Appellant did not include the claim in his court-ordered Rule 1925(b) statement.[2]

As our Supreme Court has explained:

in a challenge to the weight of the evidence, the function of an appellate court on appeal is to review the trial court's exercise of discretion based upon a review of the record, rather than to consider de novo the underlying question of the weight of the evidence. In determining whether this standard has been met, appellate review is limited to whether the trial judge's discretion was properly exercised, and relief will only be granted where the facts and inferences of record disclose a palpable abuse of discretion. It is for this reason that the trial court's denial of a motion for a new trial based on a weight of the evidence claim is the least assailable of its rulings.

Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009) (internal quotations and citations omitted).

A weight of the evidence challenge must first be raised with the trial court either before sentencing or in a post-sentence motion. Pa.R.Crim.P. 607(a). Here, Appellant failed to raise his weight claim before the trial court. Thus, the claim is waived.

Further, Appellant's weight of the evidence claim is waived because Appellant did not list the claim in his court-ordered Rule 1925(b) statement. Pa.R.A.P. 1925(b)(4)(vii) ("[i]ssues not included in the [Rule 1925(b)] Statement . . . are waived").

Judgment of sentence affirmed.


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