Com. v. Cole, K.

J-A14029-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

KENNETH JEROME COLE :

:

Appellant : No. 157 EDA 2023

Appeal from the Judgment of Sentence Entered July 15, 2022

In the Court of Common Pleas of Chester County

Criminal Division at No: CP-15-CR-0002635-2020

BEFORE: LAZARUS, P.J., STABILE, J., and LANE, J.

MEMORANDUM BY STABILE, J.: FILED DECEMBER 2, 2024

Appellant, Kenneth Jerome Cole, appeals from the judgment of sentence

imposed on July 15, 2022, as made final by the denial of his post-sentence

motion on December 13, 2022. Among other claims, Appellant challenges the

sufficiency and weight of the evidence to support his convictions of possession

with intent to deliver, possession of a controlled substance and person not to

possess firearms. Concluding that Appellant’s claims are waived, as well as

meritless, we affirm.

On August 20, 2020, several members of the Chester County High

Intensity Drug Trafficking Area task force executed a search warrant at the

home of Appellant and his wife, Nicole Gantt, located at 24 West Fifth Avenue,

Coatesville, Pennsylvania. N.T., Jury Trial, 2/28/22-3/3/22, at 217, 227.

Officer Scott Neuhaus assisted in the execution of the warrant as part of the

Emergency Response Team. Id. at 205. His primary assignment was to enter

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and secure the residence. Id. at 208. After entering, Officer Neuhaus

observed Appellant and Ms. Gantt emerge from the main bedroom dressed in

what appeared to be sleep attire.1 Id. at 209. Once everyone in residence

was secured, Detective Jonathan Shave began his investigation. Id. at 210.

Inside the main bedroom, Detective Shave asked Ms. Gantt which items

belonged to Appellant, and she identified all items on the right side of the bed.

Id. at 233-34. After being questioned, Ms. Gantt was allowed to collect her

things and remove her children from the residence. Id. at 234.

Detective Shave started his search on the side of the bedroom identified

as Appellant’s. He recovered two cell phones – an Alcatel phone and a blue

Verizon LG phone. Id. at 241. He then searched a plastic bag in that area,

which contained: (1) a chain leather wallet with Appellant’s identification card,

$300-$400 in cash and several keys2; (2) a pill bottle for alprazolam in the

name of Loretta Brown; (3) a pill bottle with a knotted bag of cocaine inside;

(4) a pill bottle with three small bags of crack cocaine and three miscellaneous

pills; (5) a pill bottle with 71 pills stamped LP-115; (6) a pill bottle with 31

white round pills stamped 230; (7) a pill bottle with 44 blue, round pills

stamped M30; (8) a coupon with Appellant’s name on it; (9) mail with a return

address for Appellant; (10) $616 in cash, banded together with Appellant’s

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1 There were several children in the residence as well, one of whom was

sleeping in the main bedroom with Appellant and Ms. Gantt. Id. at 234.

2 One of the keys on the wallet was labeled “home” and it unlocked the front

door of 24 West Fifth Avenue. Id. at 261-62.

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driver’s license, and three Pennsylvania assistance cards; and (11) an empty

bag that typically contains smaller plastic bags, known as Apple bags, which

are commonly used to package controlled substances. Id. at 242-44, 252-

53, 258-61, 264-65.

Several pieces of mail addressed to Appellant were found on the right

side of the bed. Id. at 266. Detective Shave searched another plastic bag

which contained: (1) several Apple bags in various colors; (2) a knotted plastic

bag of methamphetamine; (3) a pill bottle for oxycodone in the name of Harry

Sellers; and (4) a Ziploc bag with miscellaneous loose bags and small rubber

bands. Id. at 268-70, 273.

While continuing to search Appellant’s side of the bedroom, Detective

Shave found a cloth Gucci bag which contained: (1) a key fob for a Lincoln;

(2) four bundles of $1,000, a total of $4,000 in cash; (3) a Ruger 9mm firearm

with an Apple bag stuck in the slide; (4) a pill bottle with a knotted plastic bag

of cocaine; (5) rubber bands; and (6) miscellaneous pills. Id. at 276-77.

In the wicker nightstand on Appellant’s side, Detective Shave recovered

marijuana, a digital scale, rolling papers, and Appellant’s checkbook. Id. at

298. Detective Shave also recovered a red drawstring bag that contained

more Apple bags, a pill bottle with 40 white bars, rubber bands, and a coupon

in Appellant’s name. Id. at 303-05. Another set of keys was recovered from

a rack next to the front door with a lanyard with a tribute to Dowoun Phillips

(Appellant’s mother), and a key that opened the front door of 24 West Fifth

Avenue. Id. at 309-11. Inside of a kitchen cabinet, officers recovered two

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digital scales and stainless-steel cooking utensils, all of which had a white

powdery residue on their surfaces. Id. at 313-14.

During the search of 24 West Fifth Avenue, Detective Shave obtained

information to support a search of 214 Andrew Road, Coatesville,

Pennsylvania, a residence owned by Appellant’s stepfather, Roland Phillips.

Id. at 320-21, 424. Detective Thomas Hyland assisted in the execution of the

search warrant at that home. Id. at 422-23. Mr. Phillips informed Detective

Hyland that Appellant kept items in a locked room in his home, but he did not

have a key. Id. at 425. Detective Hyland had a set of keys from the search

of 24 West Fifth Avenue on his person, and one of those keys unlocked the

room.3 Id. at 425-26. After opening the room and ensuring that no one was

inside, Detective Hyland closed and locked the room until he obtained a search

warrant for the locked room. Id. at 426-27.

In executing the search warrant of the room identified as Appellant’s,

Detective Hyland recovered two Sentry safes, a .22 caliber handgun and a

black and pink revolver from the closet. Id. at 431, 436. In searching the

rest of the room, officers found: (1) a pill bottle with 52 white pills; (2) kitchen

instruments with white residue on them; (3) a digital scale and clear lid with

white residue; (4) a box of sandwich bags; (5) assistance cards for Appellant

and Chekesha Pate; (6) mail addressed to Appellant; (7) a plate with a razor

____________________________________________

3 Detective Hyland was in possession of the keys because he drove Appellant’s

Lincoln SVU from 24 West Fifth Avenue to the Chester County training center

to secure the vehicle in a garage. Id. at 426.

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blade and suspected cocaine; (8) a cup with Apple bags and rubber bands;

(9) a kitchen pot; (10) a clear jar with suspected marijuana; (11) a bag

containing multiple Apple bags; (12) a measuring cup; (13) a plastic container

with white, clumpy powder (later determined not to be a controlled

substance); (14) two cell phones; (15) $183 in cash; (16) a pill bottle with

over a dozen pills inside it; and (17) various types of ammunition. Id. at 432-

46, 455.

The two safes found in the closet were transported to the Chester

County training facility and manually opened. Id. at 457. One of them

contained $48,950.00 in cash.4 Id. at 479. All the suspected controlled

substances seized pursuant to the warrants were sent to a lab for testing. Id.

at 482. The parties stipulated to the lab results. Id. at 484. Several of the

pills were identified as controlled substances: 31 oxycodone and

acetaminophen, 71 hydrocodone, 62 alprazolam, 27 amphetamine, 44

oxycodone, and 1 cocaine and clonazolam [sic]. Id. at 484-89. There were

also several pills that were not controlled substances: 23 sildenafil (commonly

known as Viagra), 51 gabapentin, naproxen and acetaminophen. Id.

Additionally, 8.47 grams of cocaine, 1.89 grams of methamphetamine and

23.61 grams of marijuana were seized. Id.

____________________________________________

4 The second safe contained sports cards in plastic, rolls of unidentified coin,

and various pieces of jewelry. Id. at 510-11.

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Based on the items recovered from the two residences, Detective Shave

opined that large quantities of drugs were being distributed from them. 5 Id.

at 507. Specifically,

This is street level sales which generates a large amount of

currency. You can see that there’s, you know, $60,000 was seized

in this investigation. There’s cocaine sales. There’s prescription

pills sales. There’s noncontrolled substances sales. This is – this

is drug dealing.

The tools are all right there. You’ve got firearms to protect your

assets. You know, there’s instruments to weigh, package. We’ve

seen . . . instruments for taking a large amount of cocaine, cooking

cocaine, breaking it off into smaller portions, bagging it up into

the small Apple bags, and then . . . the sale of those small bags,

those small red bags filled with cocaine, that generates money.

That generates a lot of money.

Again, the pills are the same thing. The pills are possessed for

sale. There’s a lot of pills. There’s opiates, there’s benzos, there’s

the amphetamines, those are all pills that one person shouldn’t

have. There’s no label, so you can’t tell where they have come

from, but they’re all possessed with the intent to distribute

them for street sales.

Id. Moreover, Detective Joseph Nangle, who was accepted as an expert in

investigating controlled substances and controlled substance trafficking,

opined that Appellant possessed controlled substances with the intent to

deliver and distribute them. Id. at 588, 594. He explained:

Based upon the quantities and the variety of drugs that

[Appellant] possessed showed me that he was distributing these

drugs. A person . . . doesn’t usually possess multiple drugs. The

way they’re packaged, they were in pill bottles with no sticker on

them. They were categorized with each type of drug.

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5 Detective Shave was accepted as an expert in the field of narcotics

investigations. Id. at 223.

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They were kept together in a location with the firearm accessible

to them. They were packaged – some of them were packaged in

bags, and then there was also the bags that were new bags, which

obviously somebody that was a user wouldn’t have new bags in

their possession. Those bags were there for other drugs to be put

into them for [Appellant] to sell. The cell phones were another

indication.

****

. . . [P]eople that are distributing drugs also possess firearms for

protection. I also mentioned that they are also used by people

that were to – people that steal drugs or come across drugs and

will trade them for drugs when they don’t have the currency to do

so.

Id. at 594-95. He further opined that the cash found in the homes was

“packaged in rubber bands and . . . in a safe,” suggesting that the money

“was drug proceeds.” Id. at 595. The kitchen instruments covered with white

residue “indicated that [Appellant] was cooking crack cocaine to sell.” Id. at

596. Lastly, the fact that the evidence was obtained from two residences

indicated that Appellant utilized one as a “stash house” – a location “other

than where he resided in order to keep things safe in his opinion.” Id. at 596.

As a result, Appellant was charged with four counts of possession with

intent to deliver (“PWID”), four counts of possession of a controlled substance

by a person not registered, three counts of use/possession of drug

paraphernalia, three counts of person not to possess firearms, criminal

conspiracy, dealing in proceeds of unlawful activities, and possession of

marijuana. Prior to trial, the Commonwealth withdrew the three counts of

use/possession of drug paraphernalia, criminal conspiracy, dealing in proceeds

of unlawful activities, and possession of marijuana.

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A jury found Appellant guilty of the remaining counts – four counts

PWID, four counts of intentional possession of a controlled substance by a

person not registered and three counts of person not to possess firearms. 6 On

July 15, 2022, Appellant was sentenced to an aggregate term of 210 to 420

months of incarceration. On July 21, 2022, Appellant filed a timely post-

sentence motion. On July 27, 2022, the trial court ordered the parties to brief

the motion within thirty days. Thereafter, the trial court granted Appellant’s

request for a sixty-day extension of the briefing deadline, and a thirty-day

extension of time under Rule of Criminal Procedure 720(B)(3)(b) for the trial

court to decide the motion before it was denied by operation of law. 7

The trial court denied Appellant’s post-sentence motion on December

13, 2022.8 This appeal followed.9 Both the trial court and Appellant have

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6 The three counts of person not to possess firearms were bifurcated. The

jury first heard and decided evidence on the other eight counts, and then a

second trial was held on the firearms offenses.

7 Generally, the trial court has 120 days to rule on a post sentence motion.

Pa.R.Crim.P. 720(B)(3)(a). However, the trial court “may grant one 30-day

extension for decision on the motion” upon good cause. Pa.R.Crim.P.

720(B)(3)(b).

8 The order also granted Appellant’s request to reconsider his sentence

regarding restitution and scheduled a restitution hearing for January 5, 2023.

9 On March 30, 2023, this Court issued a rule to show cause why the appeal

should not be quashed as interlocutory. Appellant responded by stating that

the restitution component was “an ancillary and collateral issue that does not

go to the issues being appealed.” Response to Rule to Show Cause, 4/10/23.

Thereafter, the Rule was discharged, and the issue was referred to the merits

panel.

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complied with Pa.R.A.P. 1925. Appellant raises the following issues for our

review:

I. Whether the trial court erred in denying Appellant’s habeas

corpus motion based on the Commonwealth’s failure to

establish a prima facie case?

II. Whether the trial court erred in denying Appellant’s motion to

suppress and renewed motion to suppress based upon the lack

of a basis to search Appellant’s property?

III. Whether the trial court’s denial of Appellant’s motion to compel

disclosure of identities of confidential informant and unwitting

informant violated Appellant’s right to a meaningful

opportunity to present a complete defense.

IV. Whether the trial court erred in denying Appellant’s fair cross-

section challenge to jury selection?

V. Whether the trial court erred in denying Appellant’s Batson

challenge immediately following jury selection?

VI. Whether the evidence was legally insufficient to support the

jury’s verdict?

VII. Whether the jury’s verdict was against the weight of the

evidence, warranting a new trial?

VIII. Whether this case should be remanded for further argument as

to the validity of Appellant’s convictions under 18 [Pa.C.S.A.]

§ 6105 pursuant to the Bruen lines of cases?

Appellant’s Brief at 9-10.

I. PRELIMINARY HEARING

First, Appellant argues that the Commonwealth did not establish a prima

facie case at the preliminary hearing, and that the trial court erred in finding

otherwise. “It is well-known that any defect in the preliminary hearing is cured

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by subsequent trial. Once a defendant has gone to trial and has been found

guilty of the crime or crimes charged, however, any defect in the preliminary

hearing is rendered immaterial.” Commonwealth v. Kakhankham, 132

A.3d 986, 996 (Pa. Super. 2015) (citation and quotation marks omitted),

appeal denied, 138 A.3d 4 (Pa. 2016). Therefore, this issue is moot.

II. SUPPRESSION

Second, Appellant challenges the denial of his motion to suppress. We

find this issue waived, as Appellant has failed to provide a full and complete

record, namely the transcript of the suppression hearing. “The fundamental

tool for appellate review is the official record of what happened at trial, and

appellate courts are limited to considering only those facts that have been

duly certified in the record on appeal.” Commonwealth v. Williams, 715

A.2d 1101, 1103 (Pa. 1998). “To ensure that the appellate courts have all

necessary records, the Pennsylvania Rules of Appellate Procedure provide for

the transmission of certified records from trial courts to appellate courts.” Id.

Rule 1911 of the Pennsylvania Rules of Appellate Procedure requires

appellants to order any transcripts necessary to complete the record for their

appeal(s), and provides as follows:

(a) General Rule. The appellant shall request any transcript

required under this chapter in the manner and make any

necessary payment or deposit therefor in the amount and

within the time prescribed by Rules 4001 et seq. of the

Pennsylvania Rules of Judicial Administration

****

(d) Effect of failure to comply. If the appellant fails to take

the action required by these rules and the Pennsylvania

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Rules of Judicial Administration for the preparation of the

transcript, the appellate court may take such action as it

deems appropriate, which may include dismissal of the

appeal.

Pa.R.A.P. 1911. Thus, “[w]hen the appellant . . . fails to conform to the

requirements of Rule 1911, any claims that cannot be resolved in the absence

of the necessary transcript or transcripts must be deemed waived for the

purpose of appellate review.” Commonwealth v. Preston, 904 A.2d 1, 7

(Pa. Super. 2006), appeal denied, 916 A.2d 632 (Pa. 2007).

When examining the ruling of a motion to suppress, “appellate courts

are limited to reviewing only the evidence presented at the suppression

hearing.” Commonwealth v. Harlan, 208 A.3d 497, 499 (Pa. Super. 2019)

(citation omitted). Here, there is no indication on the docket that a request

for the transcript of the suppression hearing was ever filed. Without the

benefit of the suppression hearing transcript, this Court cannot conduct a

meaningful review of the issue. Therefore, we find Appellant’s second issue

waived.10

III. DISCLOSURE OF CONFIDENTIAL INFORMANT

In Appellant’s third issue, he challenges the denial of his motion to

compel disclosure of the identities of a confidential informant and an unwitting

informant. Initially, Appellant was charged with offenses related to controlled

buys purportedly between Appellant and the confidential informant and the

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10 The trial court determined Appellant’s suppression issue was waived for the

same reason. See Trial Court Opinion, 3/17/23, at 4-5.

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unwitting informant. See Trial Court Opinion, 3/17/23, at 8. However, the

Commonwealth withdrew all charges related to the controlled buys and “no

longer intend[ed] to introduce any evidence of the circumstances and details

of the controlled buys at trial. The Commonwealth planned to only proceed

on the counts pertaining to what was discovered based on the execution of

the search warrants.” Id.

When faced with a claim that a trial court erred in its disposition of a

request for disclosure of an informant’s identity, our standard of review is an

abuse of discretion. Commonwealth v. Withrow, 932 A.2d 138, 140 (Pa.

Super. 2007). “Indeed, where the informant was an eyewitness to the

transaction in question, the role of the trial judge’s discretion is established

by rule of court. See Pa.R.Crim.P. 573(B)(2)(a)(i). Where the informant was

not an eyewitness, the extent of the court’s discretion is specified more

broadly by case law.” Id.

“Significantly, regardless of whether the informant was an eyewitness

to the transaction for which the defendant was charged, the Commonwealth

retains a qualified privilege not to disclose an informant’s identity.” Id. at

140-41. “To overcome that privilege, the defendant must show that his

request for disclosure is reasonable and that the information sought to be

obtained through disclosure is material to the defense.” Id. at 141. At a

minimum, a defendant must show “a reasonable probability the informant’s

testimony would exonerate him.” Id. Once a defendant meets this threshold

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requirement, then the trial court must determine whether to reveal the

informant’s identity. Id.

Where the charges are based on evidence discovered during the

execution of a search warrant, and not based on a drug transaction, courts

have found that the defendant failed to meet the threshold requirement. See

id.; see also Commonwealth v. Belenky, 777 A.2d 483, 489 (Pa. Super.

2001) (“Appellant was charged with the offenses resulting from the search,

not the sale, and the validity of that search has nothing to do with the identity

of the man who sold drugs”). Moreover, courts have noted that confidential

informants are not present at the time a warrant is executed and “could add

nothing to the question of identity [at the execution of the warrant], which is

the only identity relevant to guilt.” Id. at 142 (quoting Belenky, 777 A.2d at

489).

Here, Appellant admits that the confidential informant was not an

eyewitness to any of the controlled buys. Appellant’s Brief at 28. However,

he claims that the confidential informant’s information was based on hearsay

statements of the unwitting informant. Id. “Those hearsay statements of the

[unwitting informant] were then relayed to the [confidential informant], and

the [confidential informant] then relayed those statements to police, and that

information then formed the basis for the search warrants.” Id. Appellant

contends that since the trial court denied his motion to compel disclosure, he

was deprived of the ability to dispute his identity as the person who sold

controlled substances to the informant. Id. at 28-29.

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We note that Appellant challenged the validity of the search warrants in

his motion to suppress. As noted above, he has waived appellate review of

that issue. Therefore, we are bound by the trial court’s determination that

the search warrants were validly issued.

Even if the issue were not waived, we would find that it lacks merit. The

Commonwealth charged Appellant based on the contraband found during the

execution of valid searches, and not based on what any informants told police

about the controlled buys. The confidential informant did not observe any of

the subject offenses or searches by police. See Withrow, supra. Therefore,

the trial court properly denied Appellant’s motion to compel disclosure and no

relief is due.

IV. CROSS-SECTION CHALLENGE TO JURY SELECTION

Appellant’s fourth issue is that the trial court erred in denying his fair

cross-section challenge to jury selection. Our Supreme Court has summarized

the requirements for this challenge as follows:

The Commonwealth notes that Appellant does not have the right

to demand that specific numbers of minorities sit on the jury panel

which judges him. See Commonwealth v. Jones, 304 A.2d 684

([Pa.] 1973); Commonwealth v. Craver, 688 A.2d 691, 696

([Pa.] 1997) (“Defendants are not entitled to a jury of any

particular composition, but the jury wheels, pools of names,

panels, or venires from which juries are drawn must not

systematically exclude distinctive groups in the community and

thereby fail to be reasonably representative thereof.” (quoting

Taylor v. Louisiana, 419 U.S. 522, 538 (1975) (emphasis in the

original))).

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To establish a prima facie violation of the requirement that a jury

array fairly represent the community, [an appellant] must show

that:

(1) the group allegedly excluded is a distinctive group

in the community; (2) the representation of this group

in venires from which juries are selected is not fair and

reasonable in relation to the number of such people in

the community; and (3) this underrepresentation is

due to systematic exclusion of the group in the jury

selection process. “Systematic” means caused by or

inherent in the system by which juries were selected.

Craver, 688 A.2d at 696 (citing Duren v. Missouri, 439 U.S.

357, 364, 366-67 (1979)). Proof is required of an actual

discriminatory practice in the jury selection process, not

merely under-representation of one particular group. See id. [at

696]. The defendant bears the initial burden of presenting prima

facie evidence of discrimination in the jury selection process. See

Jones, 304 A.2d at 692.

Commonwealth v. Johnson, 838 A.2d 663, 682 (Pa. 2003) (emphasis

added).

At the end of jury selection in this case, counsel for Appellant made the

following objection at sidebar: “for the sake of preserving the record for

appeal, PCRA, or whatever, I would have to raise the following challenges. I’ll

raise a cross-section challenge based on the Sixth Amendment.” N.T., Trial,

at 118. The trial court denied the motion and found that Appellant “offered

absolutely no statistical proof regarding “racial minorities” being unfairly

represented in Chester County’s jury pool in relation to the number of such

persons in the community.” Trial Court Opinion, 3/17/23, at 12. We agree.

Appellant failed to present any evidence of a calculated discriminatory

practice on the part of the Commonwealth. In fact, he offered no evidence

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concerning the Chester County jury selection process at all. Moreover,

Appellant failed to make any argument as to what discriminatory practice had

caused a systematic exclusion of a distinct group from the jury.

In his brief, Appellant cites data from the U.S. Census Bureau

concerning Chester County’s population – 8.3% Black, 83.9% White, 7.2%

Asian American, and 7.7% Hispanic or Latino – and argues that such statistics

satisfy the second prong of the cross-section test because “[t]he only

conclusion that is fair to draw is that this is due to systematic exclusion of

African Americans and racial minorities.” Appellant’s Brief at 31-32. We

disagree. The mere showing of underrepresentation, absent an actual

discriminatory practice in the jury selection process, causes Appellant’s

constitutional claim to fail.11 See Johnson, supra. Accordingly, no relief is

due on this issue.

V. BATSON CHALLENGE

In Appellant’s fifth issue, he raises a Batson12 challenge regarding the

Commonwealth’s striking of an Asian woman (potential juror 27), who was

the “only racial minority eligible to sit on the jury.” Appellant’s Brief at 33

(emphasis in the original). “In Batson, the United States Supreme Court held

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11 Appellant’s argument that “[d]efense attorneys do not, and should not, be

required to, stride into jury selection with census reports, surveys, and bar

graphs” is misplaced and a misunderstanding of the law. See Appellant’s Brief

at 32.

12 Batson v. Kentucky, 476 U.S. 79 (1986).

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that a prosecutor’s challenge to potential jurors solely on the basis of race

violates the Equal Protection Clause of the United States Constitution.”

Commonwealth v. Murray, 248 A.3d 557, 567 (Pa. Super. 2021) (citing

Commonwealth v. Reid, 99 A.3d 470, 484 (Pa. 2014)). A criminal

defendant may object to race-based exclusion of jurors regardless of whether

the defendant and the excluded juror share the same race. Id. A Batson

claim presents mixed questions of law and fact; therefore, our standard of

review is whether the trial court’s legal conclusions are correct and whether

its factual findings are clearly erroneous. Id.

When a defendant makes a Batson challenge during jury selection:

First, the defendant must make a prima facie showing that the

circumstances give rise to an inference that the prosecutor struck

one or more prospective jurors on account of race; second, if the

prima facie showing is made, the burden shifts to the prosecutor

to articulate a race-neutral explanation for striking the juror(s) at

issue; and third, the trial court must then make the ultimate

determination of whether the defense has carried the burden of

proving purposeful discrimination.

Id. at 568 (citation omitted). Additionally, Pennsylvania law requires a

defendant to specifically identify: (1) the race or gender of all venirepersons

in the jury pools; (2) the race or gender of all venirepersons remaining after

challenges for cause; (3) the race or gender of those removed by the

prosecutor; and (4) the race or gender of the jurors who served and the race

or gender of jurors acceptable to the Commonwealth who were stricken by

the defense. Id. (citing Commonwealth v. Hill, 727 A.2d 578, 582 (Pa.

Super. 1999)).

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This Court previously explained what is required for a defendant to make

a prima facie showing of purposeful discrimination:

The prima facie case requires more than just noting on the record

the race of excluded jurors and the numerical composition of the

prosecution’s strikes. The prima facie case must be detailed

enough for the trial court eventually to assess whether there has

been purposeful discrimination to establish a Batson violation.

The prima facie case must identify the circumstances a defendant

believes establishes purposeful discrimination, including those

record items required under Pennsylvania law.

Id. A prima facie case has been found where, inter alia, the defendant was

Black, and the prosecutor struck seven Black prospective jurors and no White

prospective jurors. See Commonwealth v. Edwards, 177 A.3d 963, 972-

73.

Here, at the end of jury selection, Appellant raised a Batson challenge

regarding potential juror 27:

[27] was the Asian woman. She was the one that was very

cautious and careful about bringing everything to our attention.

We didn’t have any issues with her at sidebar. She was the only

racial minority that was able to be selected during the preemptory

strike process, and she was stricken.

N.T., Trial, at 119.

We agree with the trial court that Appellant failed to make a prima facie

showing of purposeful discrimination. Appellant noted for the record that the

jury pool consisted of 55 people, only four of whom identified as a minority –

two Black, one Asian, and one Hispanic. Id. at 118. One Black juror was

excused for cause because he was related to a defense witness. Id. It was

unlikely that the second Black juror and the Hispanic juror would be selected

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due to Chester County’s jury numbering system. Id. at 118-19. That left the

Asian juror, who was struck by the Commonwealth. Id. at 119.

The entirety of Appellant’s argument is based solely on the fact that the

Commonwealth struck a potential juror who identified as a minority. But as

stated above, mere reference to the striking of a juror of one race is not

sufficient to set forth a prima facie showing of purposeful discrimination. See

Murray, supra.

Even if Appellant made a prima facie showing of purposeful

discrimination, the Commonwealth offered, and the trial court accepted, a

race-neutral reason for the disputed strike:

[T]o be perfectly frank, I wasn’t even looking at her when I struck

her. But it was based on recollections per [co-counsel] that at

sidebar, she did give answers at sidebar, but she definitely

seemed to be a little bit all over the place in terms of her answers

and in terms of her comprehension of the things that were at

issue.

N.T. Trial at 120. We are satisfied that even if Appellant made a prima facie

showing of purposeful discrimination, the Commonwealth provided a race-

neutral reason for striking juror 27. Therefore, the trial court did not abuse

its discretion in denying Appellant’s Batson challenge.

VI. SUFFICIENCY OF THE EVIDENCE

In Appellant’s sixth issue, he challenges the sufficiency of the evidence

to support his convictions. Our standard of review is:

whether viewing all the evidence admitted at trial in the light most

favorable to the verdict winner, there is sufficient evidence to

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enable the fact-finder to find every element of the crime beyond

a reasonable doubt. In applying the above test, we may not weigh

the evidence and substitute our judgment for the fact-finder. In

addition, we note that the facts and circumstances by the

Commonwealth need not preclude every possibility of innocence.

Any doubts regarding a defendant’s guilt may be resolved by the

fact-finder unless the evidence is so weak and inconclusive that

as a matter of law no probability of fact may be drawn from the

combined circumstances. The Commonwealth may sustain its

burden of proving every element of the crime beyond a reasonable

doubt by means of wholly circumstantial evidence. Moreover, in

applying the above test, the entire record must be evaluated and

all evidence actually received must be considered. Finally, the

trier of fact while passing upon the credibility of witnesses and the

weight of the evidence produced, is free to believe all, part or none

of the evidence.

Commonwealth v. Brown, 23 A.3d 544, 559-60 (Pa. Super. 2011) (en banc)

(internal citations omitted).

“In order to preserve a challenge to the sufficiency of the evidence on

appeal, an appellant’s Rule 1925(b) statement must state with specificity the

element or elements upon which the appellant alleges that the evidence was

insufficient.” Commonwealth v. Freeman, 128 A.3d 1231, 1248 (Pa. Super.

2015). “Such specificity is of particular importance in cases where, as here,

the appellant was convicted of multiple crimes each of which contains

numerous elements that the Commonwealth must prove beyond a reasonable

doubt.” Id. When an appellant fails to identify the specific elements of the

specific crimes that are being challenged in a 1925(b) statement, the issue is

waived. Id.; see also Commonwealth v. Bonnett, 239 A.3d 1096, 1106-

07 (Pa. Super. 2020), appeal denied, 250 A.3d 468 (Pa. 2021) (finding waiver

due to a blanket statement in the Rule 1925(b) statement that there was

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“insufficient evidence to sustain a verdict of guilty of each charge in each

case”).

Here, Appellant’s 1925(b) statement of errors includes the following

claims: “The evidence presented at trial was legally insufficient to support the

jury’s verdict.” Appellant’s Concise Statement, 1/30/23, at ¶ 7. This

boilerplate, conclusory statement was deficient as a matter of law to preserve

a sufficiency challenge for appellate review. Appellant was convicted of three

different offenses, but he failed to identify the specific element of each offense

that he believed was not supported by sufficient evidence. Instead, he simply

objected to the sufficiency of “the jury’s verdict,” an assertion that was no

more specific than the sufficiency claims we found waived in Bonnett.

Accordingly, we hold that Appellant waived his challenge to the sufficiency of

the evidence.13

VII. WEIGHT OF THE EVIDENCE

Alternatively, in Appellant’s seventh issue, he contends that the verdicts

were against the weight of the evidence. He claims that

[t]he jury’s verdict is against the weight of the evidence due to

the lack of evidence establishing constructive possession by

[Appellant] of the contraband in both houses. There was no

fingerprint evidence nor any controlled buys introduced. Nicole

Gantt had access to the same areas in the 5 th Avenue property.

Accordingly, a new trial should be granted.

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13Even if the sufficiency claims were not waived, Appellant would not be

entitled to relief for the reasons given by the trial court in its 1925(a) opinion.

See Trial Court Opinion, 3/17/23, at 93-102.

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Appellant’s Brief at 37.

A challenge to the weight of the evidence concedes that there was

sufficient evidence to sustain the verdict. See Commonwealth v. Widmer,

744 A.2d 745, 751-52 (Pa. 2000). On review of a trial court’s ruling on a

weight of evidence claim, we employ an abuse of discretion standard:

Appellate review of a weight claim is a review of the exercise of

discretion, not of the underlying question of whether the verdict

is against the weight of the evidence. Because the trial judge has

had the opportunity to hear and see the evidence presented, an

appellate court will give the gravest consideration to the findings

and reasons advanced by the trial judge when reviewing the trial

court’s determination that the verdict is against the weight of the

evidence.

Id. at 753.

Although labeled as a weight claim, it is apparent that Appellant is

merely repeating his challenge to the sufficiency of the evidence. Appellant

argues that the verdict is against the weight of the evidence “due to the lack

of evidence establishing constructive possession.” Appellant’s Brief at 37. But

as noted above, a challenge to the weight of the evidence concedes there was

sufficient evidence. See Widmer, supra.

Regardless, we see no valid basis on which to disturb the trial court’s

ruling on the weight of the evidence. Appellant does not dispute that the

items on the right side of the bed belonged to him. Rather, he argues that

Ms. Gantt had equal access to the areas where the contraband was found.

Here, the evidence of Appellant’s guilt was significant and compelling – most

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of the contraband was found with or near an item identifying Appellant, i.e.,

a piece of mail, identification card, access card, etc.) and a significant amount

of contraband, including a safe with almost $50,000 in cash, was found in a

locked room inside Appellant’s stepfather’s home that only Appellant had

access to. Thus, Appellant’s weight of the evidence claim is without merit,

since we find no abuse of discretion by the trial court. 14

VIII. FIREARMS CONVICTIONS

Lastly, Appellant requests this Court to remand the matter to the trial

court to determine whether his firearms convictions violate the Second

Amendment pursuant to New York State Rifle & Pistol Ass’n, Inc. v.

Bruen, 597 U.S. 1 (2022). Appellant was convicted of three counts of

possession of firearms prohibited, 18 Pa.C.S.A. § 6105. He makes a facial

challenge to the constitutionality of Section 6105 and seeks remand to create

a record of the issue. See Appellant’s Brief at 40-41.

The Commonwealth and the trial court argue that Appellant has waived

this claim because he did not first raise the claim before the trial court. We

agree. See Pa.R.A.P. 302(a) (issues not raised in the lower court are waived

and cannot be raised for the first time on appeal); Commonwealth v.

Armolt, 294 A.3d 364, 379 (Pa. 2023) (in general, constitutional challenges

____________________________________________

14 The trial court “unequivocally determine[d] that the guilty verdict on the

charges is not against the weight of the evidence. To the contrary, the

evidence strongly supports the verdict on each of the counts.” Trial Court

Opinion, 3/17/23, at 104.

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are subject to the ordinary preservation rules); Commonwealth v. Strunk,

953 A.2d 577, 579 (Pa. Super. 2008) (“even issues of constitutional dimension

cannot be raised for the first time on appeal”). Bruen was decided on June

23, 2022, prior to Appellant’s sentencing and was not raised at the time of

sentencing nor in a post-sentence motion; therefore, the claim is waived.

Based on the foregoing, none of Appellant’s claims warrant relief, and

the judgment of sentence must be upheld.

Judgment of sentence affirmed.

Date: 12/2/2024

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