Com. v. Crosby, C.

• Court: Superior Court of Pennsylvania
• Decided: February 10, 2026
• Docket: 711 MDA 2025
• Status: Unpublished
• Author: Murray

Opinion

J-S45020-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CLIFF CROSBY : : Appellant : No. 711 MDA 2025

Appeal from the Judgment of Sentence Entered September 2, 2021 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0000577-2021

BEFORE: STABILE, J., MURRAY, J., and FORD ELLIOTT, P.J.E.*

MEMORANDUM BY MURRAY, J.: FILED: FEBRUARY 10, 2026

Cliff Crosby (Appellant) appeals from the judgment of sentence imposed

following his conviction by a jury of two counts each of possession with intent

to deliver a controlled substance (PWID) and criminal use of a communication

facility (CUCF).1 Because Appellant failed to properly invoke this Court’s

jurisdiction to challenge the discretionary aspects of his sentence, we dismiss

the appeal.

The trial court summarized the relevant, underlying factual history:

On January 8, 2019, a confidential informant (CI) told law enforcement that they could purchase “8 balls” of crack cocaine, approximately three and one-half (3½) grams, from [Appellant] for $150.00. N.T., 6/21/21, at 21, 80-81. The following day, Narcotics Agents Christopher Burnell and Kurt Zitsch [(Agents ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. § 7512(a). J-S45020-25

Burnell and Zitsch, respectively)], with the Pennsylvania Office of Attorney General, met with the CI at a secure location for the purpose of conducting a controlled buy from [Appellant]. Id. at 21, 83.

The CI advised police that [Appellant’s] phone number was 717-686-[XXXX,] and that he generally utilized rental cars. Id. at 81. The CI’s vehicle and person were searched, and no drugs or cash were discovered. Id. at 23, 84. Once the searches were completed, Agent Zitsch watched the CI place a telephone call to [Appellant’s] phone number and heard [the CI] arrange to purchase two (2) “8 balls” in the vicinity of 4th and Muench Streets in the City of Harrisburg. Id. at 84-85.

[Law enforcement] left to set up surveillance in the area, and Agent Zitsch provided the CI with $300.00 of pre-recorded funds, placed a video recording device in the CI’s vehicle, and then followed the CI to the arranged sale location. Id. at 85-86, 87. From his surveillance position, Narcotics Agent Sean Haggarty observed [Appellant] exit the nearby Community Center, approach the CI’s vehicle, enter the vehicle, and then exit it shortly thereafter. Id. at 57-58, 60-61. The CI then called Agent Zitsch to tell him the deal was done. Id. at 89. Agent Burnell followed the CI’s vehicle directly back to the secure location without making any stops along the way. Id. The CI then provided Agent Burnell with the drugs, and [Agent Burnell], in turn, provided them to Agent Zitsch. Id. at 25, 89. The CI’s vehicle was searched again, and no contraband was found. Id. at 26.

The video from the recording device inside the CI’s vehicle was admitted into evidence [at trial] and played for the jury. Id. at 94. The substance delivered by [Appellant] to the CI was tested by the Pennsylvania State Police and found to be cocaine weighing 5.91 grams. Id. at 91.

Trial Court Opinion, 7/29/25, at 3-4 (citations modified; phone number

redacted).

The CI participated in a second controlled buy of cocaine from Appellant,

near North Harrisburg and Lincoln Streets, on March 5, 2019. Id. at 4. Law

-2- J-S45020-25

enforcement employed the same procedure of searching the CI, and following

the CI to and from the purchase location, as described above. Id. at 4-5. The

CI received from Appellant, and provided to law enforcement, 6.54 grams of

cocaine. Id. at 5. Law enforcement charged Appellant with drug and related

offenses on July 25, 2019.

On February 18, 2021, the Commonwealth filed a criminal information

charging Appellant with three counts each of PWID and CUCF. Appellant filed

a motion to dismiss pursuant to Pa.R.Crim.P. 600 (speedy trial rule), which

the trial court denied. On June 22, 2021, a jury convicted Appellant of the

above charges, and failed to reach a verdict on the remaining charges of PWID

and CUCF. The trial court ordered a presentence investigation report. On

September 2, 2021, the matter proceeded to sentencing.2

Relevantly, at sentencing, Appellant argued the trial court should treat

Appellant’s separate PWID convictions as a single transaction for sentencing

purposes. N.T., 9/2/21, at 4-5. Appellant acknowledged that the applicable

standard sentencing guidelines, for PWID involving 5.91 and 6.54 grams of

cocaine, call for a minimum period of incarceration between 24 and 30 months

for each of the two transactions. Id. at 5. Appellant argued, however, that

the Commonwealth dictated the terms of these transactions, including the

____________________________________________

2 At the sentencing hearing, the Commonwealth withdrew the remaining PWID

and CUCF charges.

-3- J-S45020-25

amounts of drugs for purchase, with the use of the CI. Id. Therefore,

Appellant argued, the trial court should combine the weight of the cocaine,

and sentence Appellant to a single, minimum period of incarceration utilizing

the standard sentencing guidelines for PWID involving 12.54 grams of cocaine,

i.e., 27 to 33 months. Id.

The trial court rejected Appellant’s argument, sentenced Appellant to

consecutive terms of three to ten years in prison for his PWID convictions, and

imposed no further penalty for his CUCF convictions. Thus, the trial court

imposed an aggregate sentence of six to twenty years in prison.3

On September 13, 2021, Appellant timely filed a post-sentence motion

for modification of his sentence, asserting that, “[i]n choosing the amount of

cocaine to purchase and to conduct multiple controlled buys from [Appellant],

whose identity required no additional length of time to investigate the first

delivery, the Commonwealth committed sentencing manipulation 4 ….” Post-

3 The sentencing order was filed of record on September 3, 2021.

4 We “accept[ed] the principles underlying sentencing entrapment” in Commonwealth v. Petzold, 701 A.2d 1363, 1364 (Pa. Super. 1997), wherein we explained that

[s]entencing entrapment or manipulation is a doctrine developed and adopted in several Federal Circuit Courts of Appeal. It occurs when a defendant, although predisposed to commit a minor or lesser offense, is entrapped in committing a greater offense subject to greater punishment. It often is asserted in narcotics matters, typically reverse sting cases, in which government agents determine the amount of drugs a target will purchase. (Footnote Continued Next Page)

-4- J-S45020-25

Sentence Motion, 9/13/21, ¶ 15 (footnote added). On September 29, 2021,

the trial court denied Appellant’s post-sentence motion.

Appellant filed a timely notice of appeal.5 On direct appeal, Appellant

challenged only the trial court’s denial of his Rule 600 motion. We affirmed

Appellant’s judgment of sentence, and the Pennsylvania Supreme Court

subsequently denied Appellant’s petition for allowance of appeal.

Commonwealth v. Crosby, 285 A.3d 921 (Pa. Super. 2022) (unpublished

memorandum), appeal denied, 307 A.3d 1202 (Pa. filed November 16,

2023).

On March 21, 2024, Appellant, pro se, filed a “Motion for

Reconsideration and Modification of Sentence Nunc Pro Tunc,” setting forth

purportedly mitigating circumstances, and requesting that his sentence be

modified to impose his terms of incarceration concurrently rather than

Sentencing entrapment or manipulation is similar to traditional notions of entrapment in that it requires extraordinary misconduct by the government. However, it differs from classic entrapment in that it is not a complete defense to criminal charges and, therefore, cannot serve as a basis for acquittal. Instead, it provides a convicted defendant the opportunity for a reduced sentence, typically in the form of a downward departure from the sentencing guidelines. It also can be used to exclude one of several criminal transactions included in a sentencing scheme. It may even provide relief from a mandatory sentence.

Petzold, 701 A.2d at 1365 (quotation marks and citations omitted).

5 The Dauphin County Public Defender’s Office (trial counsel) represented Appellant at trial and on his direct appeal.

-5- J-S45020-25

consecutively. Post-Sentence Motion Nunc Pro Tunc, 3/21/24, at 2-3. On

March 26, 2024, the trial court issued an order indicating that Appellant’s

motion “cannot be entertained,” as the trial court was “without jurisdiction to

do so[.]” Order, 3/26/24. The trial court pointed out that it could only modify

Appellant’s sentence within thirty days of its imposition, see 42 Pa.C.S.A. §

5505 (modification of orders), and, because Appellant only sought “leniency

based upon the discretionary aspect[s] of sentencing[,]” Appellant’s motion

was not cognizable under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546, see Commonwealth v. Hernandez, 328 A.3d 1159, 1165

n.3 (Pa. Super. 2024) (“[C]hallenges to the discretionary aspects of

sentencing are not cognizable under the PCRA.”). Order, 3/26/24.

On May 16, 2024, Appellant filed a pro se “Application for Relief”

(challenging the trial court’s Rule 600 determination), which the trial court

treated as a timely, first PCRA petition. The trial court appointed Attorney

William Shreve, Esquire (Attorney Shreve), to represent Appellant. Attorney

Shreve filed a motion to withdraw “pursuant to Commonwealth v. Turner,

544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super. 1988),” indicating that upon his review, Appellant’s claims regarding

the trial court’s Rule 600 analysis lacked merit. See Motion to Withdraw,

7/12/24, ¶ 16.

On July 15, 2024, the trial court granted Attorney Shreve’s motion to

withdraw as counsel, and filed Pa.R.Crim.P. 907 notice of its intent to dismiss

-6- J-S45020-25

Appellant’s PCRA petition without a hearing. Appellant filed a pro se response

averring that Attorney Shreve, “throughout the entire duration of his

representation of [Appellant], never responded to any written correspondence

… from [Appellant,] preventing meaningful communication to perfect the

issues raised by [Appellant].” Pro se Response, 8/5/24, at 4 (unpaginated).

In response to Appellant’s claim of Attorney Shreve’s ineffectiveness, the trial

court appointed Attorney Brandy Hoke, Esquire, to represent Appellant.

Appellant thereafter filed a counseled, amended PCRA petition, arguing

trial counsel rendered ineffective assistance by failing to challenge the trial

court’s discretion in imposing sentence. Amended PCRA Petition, 1/21/25, ¶¶

31-39. Following procedural matters irrelevant to our disposition, the

Commonwealth filed a “Stipulation to Reinstate [Appellant’s] Direct Appeal

Right[s] Vis-à-vis Discretionary Aspects of Sentencing.” The stipulation

represented that the parties “stipulate[] to reinstate [Appellant’s] right to file

a direct appeal containing his discretionary aspects of sentencing claim as

raised in his post-sentence motion.” Stipulation, 5/7/25, at 2 (unpaginated).

The PCRA court subsequently entered an order granting Appellant relief,

as requested in his amended PCRA petition, indicating that Appellant “is

permitted to file a notice of appeal nunc pro tunc[, within thirty days of the

PCRA court’s order,] solely to pursue on direct appeal the challenge to the

discretionary aspects of sentencing that was preserved in the post-sentence

motion filed on September 13, 2021.” Order, 3/8/25.

-7- J-S45020-25

Appellant filed a nunc pro tunc notice of appeal. Appellant and the trial

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

Appellant raises the following issue:

Whether the trial court erred as a matter of law and/or abused its discretion in denying [Appellant’s] request to reconsider and modify [his] sentence to account for the total weight of the cocaine rather than multiple deliveries of lower quantities of cocaine, which resulted in an excessive sentence?

Appellant’s Brief at 4.

There is no absolute right to appeal the discretionary aspects of a

sentence. Commonwealth v. Lawrence, 313 A.3d 265, 286 (Pa. Super.

2024) (“Challenges to the discretionary aspects of sentencing do not entitle

an appellant to review as of right.” (citation and brackets omitted)). Rather,

this Court applies a four-part test to determine:

(1) whether the appellant filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether the appellant’s brief has a fatal defect, see 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, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Bartic, 303 A.3d 124, 134 (Pa. Super. 2023) (brackets

and some citations omitted).

Instantly, Appellant filed a nunc pro tunc notice of appeal within thirty

days of the PCRA court’s March 8, 2025, order granting Appellant’s amended

PCRA petition. Further, Appellant preserved his challenge in a timely post-

sentence motion, and included in his brief a Rule 2119(f) statement.

-8- J-S45020-25

In his Rule 2119(f) statement, however, Appellant ostensibly abandons

the sentencing manipulation argument raised in his September 13, 2021,

post-sentence motion. Instead, Appellant merely claims the trial court

imposed an excessive, consecutive sentence, because his crimes are similar

in nature. Appellant’s Brief at 10. Appellant argues that “the consecutive

terms of incarceration … are excessive because[] the underlying facts for each

count are so intertwined with the other that they constitute one event for

sentencing purposes.” Id. Appellant does not reference sentencing

manipulation at all, let alone claim that the Commonwealth engaged in

“outrageous [] conduct designed solely to increase [Appellant’s] term of

incarceration[,]” as necessary to support an allegation of sentencing

manipulation. Petzold, 701 A.2d at 1366.

Accordingly, Appellant’s bald claim of excessiveness, based upon the

trial court’s imposition of consecutive sentences, does not present a

substantial question. See Commonwealth v. Radecki, 180 A.3d 441, 468

(Pa. Super. 2018) (“[E]xcessiveness claims premised on imposition of

consecutive sentences do not raise a substantial question for our review.”);

Commonwealth v. Johnson, 873 A.2d 704, 709 (Pa. Super. 2005) (“[T]he

imposition of consecutive sentences following convictions for multiple criminal

acts that arose out of one larger criminal transaction does not raise a

substantial question, as a defendant is not entitled to a ‘volume discount’ for

his crimes.” (citation omitted)); see also Commonwealth Brief at 5-6 (arguing

-9- J-S45020-25

“Appellant’s claim that his sentences should have run concurrently instead of

consecutively does not raise a substantial question.” (citing Commonwealth

v. Dodge, 77 A.3d 1263 (Pa. Super. 2013)). Accordingly, as Appellant failed

to invoke this Court’s jurisdiction, his appeal is dismissed.

Appeal dismissed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 2/10/2026

- 10 -