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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                    v.

ROBERTO LOPEZ

                         Appellant                     No. 3745 EDA 2015


        Appeal from the Judgment of Sentence November 20, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0009276-2014


BEFORE: BOWES, PANELLA AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                           FILED JANUARY 18, 2017

      Roberto Lopez appeals from his judgment of sentence of nine to

twenty-three months incarceration followed by four years probation imposed

for his convictions for possession with intent to deliver (“PWID”), conspiracy

to commit PWID, possession of drug paraphernalia, and possession of a

controlled substance. We affirm.

      The trial court set forth the pertinent facts as follows:

            On June 3, 2014, at about 2:30 p.m., Officer Nicholas
      Cessna set up a “buy bust” narcotics operation with a
      confidential informant (“CI”) in the area of 3900 Castor Avenue.
      Since the CI did not speak English, he dealt directly with Agent
      Chaves. . . . a price was negotiated for $90 a bundle for 50
      bundles of heroin. Prior to meeting with their CI, other officers
      and agents assigned to the squad conducted a surveillance of
      the location. The other officers notified them that there were
      two males, later identified as Angel Caneles and Omar
      Rodriguez, using a cellular telephone outside of the Rite Aid on

* Former Justice specially assigned to the Superior Court.
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       the corner of 3900 Castor Avenue. Mr. Caneles informed the CI
       that “the drugs were close by.” At that time, with Officer Cessna
       parked across the street, Mr. Caneles and Mr. Rodriguez walked
       over to a burgundy Kia minivan operated by [Appellant].

             Officer Cessna observed Mr. Caneles “walking briskly with
       his arms swinging” towards [Appellant’s] minivan.        Officer
       Cessna followed them in his vehicle and witnessed Mr. Caneles
       and Mr. Rodriguez enter the minivan.       The minivan circled
       around the block at which point Mr. Caneles and Mr. Rodriguez
       exited. After Mr. Caneles exited [Appellant’s] minivan, Officer
       Cessna witnessed him walk toward the CI’s vehicle “kind of like –
       like checking his side a bit.” Mr. Caneles entered the CI’s
       vehicle, at which time, the CI gave Agent Chaves the signal that
       the narcotics were on location.

Trial Court Opinion, 2/11/16, at 2 (internal citations omitted).      Officers

apprehended Mr. Caneles, Mr. Rodriguez, and Appellant.       A search of the

CI’s vehicle recovered 902 packets of heroin contained within a black plastic

bag.

       Based on the foregoing, Appellant was charged with PWID, conspiracy

to commit PWID, possession of drug paraphernalia, and possession of a

controlled substance.1 Following a non-jury trial, Appellant was found guilty

of all charges. At a subsequent hearing, the court sentenced Appellant to

nine to twenty-three months incarceration followed by four years probation.

Appellant did not file a post-sentence motion, but rather, filed a timely

notice of appeal. The court ordered Appellant to file a Rule 1925(b) concise
____________________________________________


1
 Appellant was also charged with dealing in the proceeds of unlawful activity
and criminal use of a communication facility. Those charges were dismissed
by the lower court.



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statement of matters complained of on appeal, to which he complied, and

authored its own Rule 1925(a) opinion.       This matter is now ready for our

consideration.

      Appellant raises a single contention for our review: “Were the verdicts

against the weight of the evidence and shock the conscience?” Appellant’s

brief at 2 (capitalization omitted).

      In order to preserve a challenge to the weight of the evidence, “a

defendant must present his challenge to the weight of the evidence to the

trial court for a review in the first instance.”   Commonwealth v. Stiles,

143 A.3d 968, 980 (Pa.Super. 2016). A weight of the evidence claim must

be preserved either in a post-sentence motion, by a written motion before

sentencing, or orally prior to sentencing.     Commonwealth v. Ford, 141
A.3d 547, 556 (Pa.Super. 2016); Pa.R.Crim.P. 607. The failure to properly

preserve a weight of the evidence claim will result in waiver, even if the trial

court addresses the issue in its opinion. Commonwealth v. Thompson, 93
A.3d 478, 490-491 (Pa.Super. 2014). Appellant failed to preserve his weight

issue as he did not file a post-sentence motion raising the allegation nor did

he make an oral or written motion before sentencing. Therefore, the claim

is waived.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/18/2017




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