Com. v. Dunn, D.

J-S55042-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

DYAR LUTHER DUNN :

:

Appellant : No. 1789 WDA 2019

Appeal from the Judgment of Sentence Entered November 8, 2019

In the Court of Common Pleas of Allegheny County Criminal Division at

No(s): CP-02-CR-0005549-2019

BEFORE: BOWES, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED JANUARY 14, 2021

Appellant, Dyar Luther Dunn, appeals from the aggregate judgment of

sentence of nine to twenty-four months of confinement followed by two years

of probation, which was imposed after his convictions at a bench trial for one

count of knowingly or intentionally possessing a controlled or counterfeit

substance by a person not registered and two counts of manufacture, delivery,

or possession with intent to manufacture or deliver a controlled substance.1

We affirm.

In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case. See Trial Court Opinion, dated

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. § 780-113(a)(16), (30).

J-S55042-20

June 9, 2020, at 1-3. Therefore, we have no reason to restate them at length

here. For the convenience of the reader, we briefly note:

On April 16, 2019, detectives from the City of Pittsburgh Bureau

of Police were working a plainclothes detail in the business district

of the Hazelwood area of the City of Pittsburgh. Detectives had

received dozens of complaints about open-air drug sales in that

area. At approximately 4:45 p.m. on that date, Detective

Scott Brown observed a female crossing the street holding a bag.

Over [Appellant]’s objection, Detective Brown testified that he

believed the bag contained cans of alcoholic beverages. He

further testified that he really did not see what was in the bag.

Detective Brown watched the woman, later identified as

Shayleah King, cross the street and hand the bag to [Appellant].

[Appellant] then manipulat[ed] something in his waistband and he

then dropped a small white “rock” into Ms. King’s left hand. Based

on Detective Brown’s training and experience, he believed the

“rock” to be crack cocaine. Detective Brown’s location was

approximately 100 yards from the transaction but he was using

binoculars to conduct the surveillance. He testified that he was

clearly able to observe the transaction.

Ms. King testified at trial. She testified that she gave beer to

[Appellant] on April 16, 2019. She also testified that she had

cocaine on her that day but she denied that [Appellant] gave her

anything. . . . [However, at the time of her arrest, a]fter detectives

advised her that they watched the transaction, she admitted to

the detectives that she got the crack cocaine from [Appellant].

Id. at 1-2.

Appellant was convicted on November 8, 2019, and immediately

sentenced. He did not raise any post-trial or post-sentence motions orally on

the record, see N.T., 11/8/2019, at 46-55, and he did not file any written

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J-S55042-20

post-sentence motions. On December 6, 2019, Appellant filed this timely

direct appeal.2

Appellant presents the following issue for our review:

Whether the evidence presented by the Commonwealth against

[Appellant] was so unreliable and/or contradictory as to render it

insufficient as a matter of law to sustain a verdict of guilty?

Appellant’s Brief at 5.

Appellant contends that “the Commonwealth relied on . . . patently

unreliable evidence in its prosecution of [him].” Id. at 14 (citation and internal

brackets and quotation marks omitted). He further describes “the

Commonwealth’s evidence purporting to demonstrate [Appellant] possessed

and delivered . . . in contravention to human experience and the laws of

nature, riddled with critical inconsistencies, and ultimately so unreliable

and/or contradictory as to make any verdict based thereon pure conjecture.”

Id. at 17.

Allegations of conflicting or contradictory testimony and questions of

credibility are challenges to the weight of the evidence, not to the sufficiency

of the evidence. See Commonwealth v. Knox, 219 A.3d 186, 198 (Pa.

Super. 2019) (weight claim based on conflict in testimony); Commonwealth

v. Roane, 204 A.3d 998, 1001 (Pa. Super. 2019) (“weight of the evidence is

exclusively for the finder of fact, who is free . . . to determine the credibility

____________________________________________

2 Appellant filed his statement of errors complained of on appeal on

February 7, 2020. The trial court entered its opinion on June 9, 2020.

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J-S55042-20

of the witnesses”; “[t]he fact-finder also has the responsibility of resolving

contradictory testimony”). Weight of the evidence and sufficiency of the

evidence are not the same concepts and are not interchangeable. See

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (delineating the

distinctions between a claim challenging the sufficiency of the evidence and a

claim that challenges the weight of the evidence). By challenging the

credibility of witnesses and the fact-finder’s resolution of contradictory

testimony, Appellant has conflated sufficiency of the evidence and weight of

the evidence.

A challenge to the weight of the evidence must be preserved by a motion

for a new trial. Pa.R.Crim.P. 607(A). The Rule provides:

A claim that the verdict was against the weight of the evidence

shall be raised with the trial judge in a motion for a new trial:

(1) orally, on the record, at any time before sentencing;

(2) by written motion at any time before sentencing; or

(3) in a post-sentence motion.

Id. “The purpose of this rule is to make it clear that a challenge to the weight

of the evidence must be raised with the trial judge or it will be waived.”

Comment to Pa.R.Crim.P. 607. “Failure to properly preserve the claim will

result in waiver, even if the trial court addresses the issue in its opinion.”

Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa. Super. 2014).

Appellant did not file any written post-trial or post-sentence motions nor

challenge the weight of the evidence orally on the record. See N.T.,

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11/8/2019, at 46-55. Accordingly, his sole issue on appeal is waived. See

Pa.R.Crim.P. 607; Thompson, 93 A.3d at 490.3

As Appellant has failed to preserve any issues for our review, we affirm.

In re K.L.S., 934 A.2d 1244, 1246 n.3 (Pa. 2007) (where issues are waived

on appeal, we should affirm rather than quash).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/14/2021

____________________________________________

3 Moreover, the trial court reasoned that Ms. King’s inconsistent statements

as to whether Appellant sold her the crack cocaine were less credible than the

Commonwealth’s straightforward account of the facts which included

testimony of a detective who personally observed Appellant place a “rock” of

crack cocaine into Ms. King’s hand. Trial Court Opinion, dated June 9, 2020,

at 5; see also id. at 1-2. The trial court, as fact-finder, resolved the credibility

determinations against Appellant, and its decision does not shock the

conscience. Consequently, assuming Appellant had properly preserved his

weight claim for appellate review, we would find no error in the trial court’s

decision. See Roane, 204 A.3d at 1001 (“A reversal of a verdict is not

necessary unless it is so contrary to the evidence as to shock one’s sense of

justice. 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. The fact-finder also has the responsibility of

resolving contradictory testimony and questions of credibility.” (internal

citations and quotation marks omitted)). This Court cannot and will not

substitute our judgment for that of the fact-finder.

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