Com. v. Branche, A., Jr.

• Court: Superior Court of Pennsylvania
• Decided: December 26, 2019
• Docket: 1726 MDA 2018
• Status: Unpublished

Opinion

J-S54045-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANTHONY BRANCHE, JR. : : Appellant : No. 1726 MDA 2018

Appeal from the Judgment of Sentence Entered June 28, 2018 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0003162-2016

BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.: FILED: DECEMBER 26, 2019

Appellant, Anthony Branche, Jr., appeals from the June 28, 2018

Judgment of Sentence entered in the York County Court of Common Pleas

following his jury conviction of Delivery (heroin) and Criminal Conspiracy to

Deliver Heroin.1 Appellant challenges the sufficiency and weight of the

evidence and the discretionary aspects of his sentence. After careful review,

we affirm.

We summarize the facts, as gleaned from the Notes of Testimony and

the trial court’s May 15, 2019 Opinion as follows. On April 12, 2016,

Pennsylvania State Police Troopers Shawn Wolfe and Justin Dembrowski set

up a controlled drug buy between a confidential informant (“CI”) and

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1 35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 903. J-S54045-19

Appellant, who went by the nickname “Ant Mo.” 2 The CI, in the presence of

Trooper Wolfe, called Appellant and arranged to buy heroin in exchange for

$300, which Trooper Wolfe provided from official funds and Trooper

Dembrowski had photocopied. The CI and Appellant agreed to meet at the

Sheetz gas station at the intersection of I-83 and Route 30 in York County.

When Appellant arrived at Sheetz, the CI entered his vehicle3 and sat

on the rear passenger side. Appellant was seated in the driver’s seat, and an

unknown individual, later identified as Appellant’s brother’s wife’s sixteen year

old nephew (“Nephew”) was seated in the front passenger seat. The CI gave

Appellant the $300 in official funds, and received the heroin, which had been

located in the front right passenger side air vent, in exchange.4 Following the

transaction, the CI gave the drugs, consisting of 1.22 grams of heroin, to the

police.

Pennsylvania State Police troopers stopped Appellant’s vehicle 16 miles

after he left the Sheetz parking lot. Appellant gave the troopers permission

to search his vehicle. The troopers discovered that the front right passenger

air vent—an area closer to Appellant’s front seat passenger than to Appellant—

had been modified to act as a storage compartment. Upon searching ____________________________________________

2 Appellant had “Ant Mo” tattooed on his arm, and the CI identified him in court as “Ant Mo.”

3 Appellant did not own the vehicle but had borrowed it from his brother’s wife.

4 The CI testified at trial that, owing to the passage of time, he could not remember whether Appellant or the front-seat passenger had handed him the drugs or to which of those men he had paid for the drugs.

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Appellant, the troopers located the $300 in official funds the CI had paid for

the heroin. The troopers observed that Appellant had “Ant Mo” tattooed on

his right forearm. The troopers also found two cell phones on Appellant, the

phone number of one of which matched the number the CI had called to set

up the heroin buy.

Police arrested Appellant, and the Commonwealth charged him with the

above crimes.

At Appellant’s jury trial, the Commonwealth presented the testimony of

the CI, and Troopers Wolfe and Dembrowski. Appellant testified on his own

behalf. Appellant claimed that Nephew had orchestrated the drug transaction

without Appellant’s knowledge. Relevantly, he testified that he went to Sheetz

to buy a phone charger. He testified that, when he arrived at Sheetz, but

before he exited his car, the CI approached the car. He then testified that the

CI entered the back seat of his car and engaged in a drug transaction with

Nephew. He denied that any of the money police found when they searched

him was the $300 in official funds and denied ever hearing or going by the

name “Ant Mo.”5 Appellant gave conflicting accounts of his plans for the day,

explaining first that drove to York from Baltimore intending to pick up his wife

5Appellant later stipulated that he has a tattoo on his arm that says “Ant Mo” and admitted on cross-examination that he went by that nickname.

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in Harrisburg and then later claiming that he was going to meet his wife in

Shrewsbury.6

The jury convicted Appellant of the above charges and, following its

consideration of a Pre-Sentence Investigation Report, the court sentenced

Appellant to an aggregate term of eleven to twenty-two years’ incarceration,

consisting of two consecutive five and a half to eleven-year terms.

On July 9, 2018, Appellant filed a Post-Sentence Motion, in which he

challenged the sufficiency and weight of the evidence. Appellant also

requested that the court reconsider and modify his aggravated range

sentences, asserting that they were unreasonable and manifestly excessive

because he “had only [a] prior conviction for a felony drug offense . . . and no

prior adult felony convictions at all,” and asserting that the court abused its

discretion in imposing the sentences consecutively. Motion, 7/9/18, at ¶ 18,

27, 29. The trial court held a hearing on the Motion after which, on September

14, 2018, it denied Appellant relief.

This timely appeal followed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

Appellant raises the following three issues on appeal:

1. Whether there was sufficient evidence presented by the Commonwealth in order to support the verdicts of guilty for Delivery and Criminal Conspiracy?

6The trial court observed in its Rule 1925(a) Opinion that Harrisburg and Shrewsbury are in opposite directions on I-83 from the drug buy in York. Opinion, 5/15/19, at 5 n.1.

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2. Whether the jury’s verdict was so against the weight of the evidence as to shock one’s sense of justice?

3. Whether the trial court abused its discretion and sentenced [Appellant] to an unreasonable sentence when it sentenced [Appellant] above the aggravated range on both charges, consecutive[ly]?

Appellant’s Brief at 6.

In his first issue, Appellant claims that the Commonwealth’s evidence

was insufficient to support his convictions of Delivery and Criminal Conspiracy.

Appellant’s Brief at 12-14. In particular, with respect to his Delivery

conviction, Appellant argues that the Commonwealth failed to prove that he

delivered the heroin to the CI, or that he was aware of the drug deal prior to

it taking place. Id. at 12. Appellant argues that his Criminal Conspiracy

conviction was unsupported by the evidence because the Commonwealth

failed to show that he had entered into any agreement to deliver heroin with

Nephew, that he had been aware of the drug deal prior to it occurring, or that

he profited from it. Id. at 12-13.

“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

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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.

A person is guilty of Delivery if he, inter alia, delivers a controlled

substance to another person. 35 P.S. § 780-113(a)(30).

“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).

In order to convict a defendant of Criminal Conspiracy, the

Commonwealth must prove that the defendant “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. Feliciano, 67 A.3d 19, 25-26 (Pa. Super.

2013) (citation omitted). The conspiratorial agreement “can be inferred from

a variety of circumstances including, but not limited to, the relation between

the parties, knowledge of and participation in the crime, and the

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circumstances and conduct of the parties surrounding the criminal episode.”

Commonwealth v. Devine, 26 A.3d 1139, 1147 (Pa. Super. 2011).

Instantly, the evidence, when viewed in the light most favorable to the

Commonwealth as verdict-winner, indicated that the CI ordered heroin from

Appellant by placing a call to a phone later found on Appellant’s person. The

CI met Appellant at the agreed-upon transaction location and the CI entered

Appellant’s car. Inside the car, the CI engaged in physical interactions with

both Appellant and Nephew, obtained the heroin, and paid for it with the

official funds provided by the troopers. When the troopers subsequently

arrested Appellant, he was in possession of cash, including the official funds,

and a cell phone whose number matched the one used by the CI to order the

drugs. Appellant acknowledged being in the vehicle during the transaction.

Appellant gave conflicting versions of why he was in York and lied about using

the nickname “Ant Mo” despite having a tattoo of that name on his forearm.

In light of this evidence, the jurors could reasonably conclude that Appellant

delivered heroin to the CI.

With respect to Appellant’s Criminal Conspiracy conviction, the

Commonwealth presented evidence that the CI initiated the drug buy by

calling Appellant, known as “Ant Mo.” Appellant and Nephew arrived in the

same vehicle, driven by Appellant, at the agreed-upon transaction site. Then,

upon entering Appellant’s car, the troopers observed the CI engaging in

physical interactions with both Appellant and Nephew then retrieved the

heroin from the storage compartment located in the modified air vent and

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gave the drugs to the CI. Later, police found the official funds they had given

to the CI on Appellant’s person. In light of these facts, we conclude that it

was reasonable for the jury to find the existence of a criminal agreement

between Appellant and Nephew to deliver heroin to the CI.

Following our review of the record, including the Notes of Testimony of

Appellant’s May 15, 2018 trial, we conclude that the Commonwealth presented

sufficient direct and circumstantial evidence to enable to the jury to find every

element of the offenses of Delivery and Criminal Conspiracy beyond a

reasonable doubt. Appellant is, therefore, not entitled to relief on this claim.

In his second issue, Appellant purports to challenge the weight given by

the jury to the Commonwealth’s evidence. Appellant’s Brief at 14. Appellant’s

argument consists only of the following statements: “While the standard for

weight of the evidence is different from sufficiency, the argument is exactly

the same. Therefore, since the argument is outlined in the section above it

will not be reiterated for a second time here.” Id.

Our Supreme Court has held that “incorporation by reference” is an

unacceptable manner of appellate advocacy for the proper presentation of a

claim for relief to the Court. Commonwealth v. Briggs, 12 A.3d 291, 342-

43 (Pa. 2011)) (specifying that “our appellate rules do not allow incorporation

by reference of arguments contained in briefs filed with other tribunals, or

briefs attached as appendices, as a substitute for the proper presentation of

arguments in the body of the appellate brief”); Pines v. Farrell, 848 A.2d 94,

97 n.3 (Pa. 2004) (reliance on “briefs and pleadings already filed in this case”

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was “not a recommended form of advocacy”). The Rules of Appellate

Procedure specifically require a party to set forth in his or her brief, in relation

to the points of his argument or arguments, “discussion and citation of

authorities as are deemed pertinent,” as well as citations to statutes and

opinions of appellate courts and “the principle for which they are cited.”

Pa.R.A.P. 2119(a), (b). Therefore, our appellate rules do not allow

incorporation by reference of arguments as a substitute for the proper

presentation of arguments in the body of the appellate brief. Appellant has,

thus, waived this claim.

In his final issue, Appellant claims the trial court abused its discretion

when it sentenced him to two consecutive aggravated range sentences.

Appellant concedes that the court placed numerous reasons on the record

explaining why it was imposing the sentences it imposed. Nevertheless,

Appellant argues that, “[n]one of those reasons, even when taken together,

are sufficient to support” his sentence. Appellant’s Brief at 16-17. He also

baldly claims that, “the sheer level of departure from the sentencing guidelines

is manifestly unjust and show[s] a clear abuse of discretion.” Id. at 17.

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

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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).

With respect to the second factor, a defendant must object and request

a remedy at sentencing, or raise the challenge in a post-sentence motion.

Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa. Super. 2004). The

Pennsylvania Rules of Criminal Procedure specifically caution defendants that,

when filing Post-Sentence Motions, “[a]ll requests for relief from the trial court

shall be stated with specificity and particularity[.]” Pa.R.Crim.P. 720(B)(1)(a).

See Commonwealth v. Tejada, 107 A.3d 788, 798-99 (Pa. Super. 2015)

(noting that the trial court must be given the opportunity to reconsider its

sentence either at sentencing or in a post-sentence motion). See, e.g.,

Commonwealth v. Mann, 820 A.2d 788, 793-94 (Pa. Super. 2003) (holding

that defendant waived discretionary aspects of sentencing claim regarding

sentencing court’s failure to state the reasons for his sentence on the record

where defendant filed a post-sentence motion, but only argued that his

sentence was unduly severe and the trial court abused its discretion under the

sentencing code).

Appellant did not preserve his issues he raises on appeal on the record

at sentencing. Appellant also did not preserve these issues in his Post-

Sentence Motion. As noted above, in his Post-Sentence Motion, Appellant

asserted only that the court abused its discretion in imposing sentences that

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are “unreasonable and manifestly excessive” because he “had only [a] prior

conviction for a felony drug offense . . . and no prior adult felony convictions

at all.” Motion, 7/9/18, at ¶ 18, 27. Appellant also challenged the imposition

of consecutive sentences. Id. at ¶ 29. Appellant has not raised either of

these arguments in his appellate brief, but, instead, asserts two different

bases for objection. Because Appellant failed to preserve the issues he raises

on appeal at sentencing or in his Post-Sentence Motion, he has waived his

challenges to the discretionary aspects of his sentence.7

Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/26/2019

7 In his Rule 1925(b) Statement Appellant raised yet a different ground in support of his claim that the court had abused its discretion when sentencing him. There, Appellant claimed that the court abused its discretion—with respect to his Delivery conviction only—because it failed to place sufficient reasons explaining the sentence on the record. Rule 1925(b) Statement, 9/7/18, at 1 (unpaginated).

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