Com. v. Cabrera, A. ( 2017 )

J-S13009-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALEJANDRO RUIZ CABRERA,
Appellant No. 1071 EDA 2015
Appeal from the Judgment of Sentence Entered December 18, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0008513-2013
BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 03, 2017
Appellant, Alejandro Ruiz Cabrera, appeals from the judgment of
sentence of an aggregate term of 4 to 8 years’ incarceration, followed by 10
years’ probation, imposed after a jury convicted him of corrupt
organizations, 18 Pa.C.S. § 911(b)(1), dealing in unlawful proceeds, 18
Pa.C.S. § 5111(a)(1), criminal use of a communication facility, 18 Pa.C.S. §
7512(a), possession with intent to deliver a controlled substance (PWID), 35
P.S. § 780-113(a)(3), and criminal conspiracy to commit PWID, 18 Pa.C.S. §
903(a). We affirm.
We need not summarize the complicated facts and procedural history
of this case, as the Honorable Thomas P. Rogers of the Court of Common
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S13009-17
Pleas of Montgomery County sets forth a lengthy and detailed discussion of
those matters in his Pa.R.A.P. 1925(a) opinion. See Trial Court Opinion
(TCO), 6/21/16, at 1-18. We only note that on appeal, Appellant raises the
following three issues for our review:
(1). Whether the [trial] court committed an error of law and/or
abuse of discretion when it denied [Appellant’s] post[-]sentence
motion for a new sentence because the sentence was unduly
harsh and excessive?
(2)[]. Whether the [trial] court committed an error of law and/or
abuse of discretion when it denied [Appellant’s] motion at trial
and in [his] post[-]sentence motion[] for a new trial where the
verdict was against the weight and sufficiency of [the] evidence
and the Commonwealth failed to present sufficient evidence for
the trier of fact to find [Appellant] guilty of the crimes charged?
[(3)]. Whether the [trial] court committed an error of law and/or
abuse of discretion when it allowed [evidence of] prior
unadjudicated acts, via testimony of Trooper Martinez, alleged to
have occurred in Berks County where Appellant would have had
to waive his Fifth Amendment rights and in violation of Due
Process to defend himself in Montgomery County having not yet
been adjudicated in Berks County?
Appellant’s Brief at 5 (unnecessary capitalization omitted).
We have reviewed the certified record, the briefs of the parties, and
the applicable law. Additionally, we have reviewed Judge Rogers’ thorough
and well-crafted opinion. We conclude that Judge Rogers accurately
disposes of the issues presented by Appellant. We find no need to add
anything further to Judge Rogers’ well-reasoned analysis, especially
considering the minimally developed, and legally unsupported, arguments
-2-
J-S13009-17
that Appellant presents in his brief to this Court.1 Accordingly, we adopt
Judge Rogers’ opinion as our own and affirm Appellant’s judgment of
sentence on that basis.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/3/2017
____________________________________________
1
Indeed, we could conclude that Appellant has waived his first two issues for
our review, based on his failure to provide any meaningful discussion in
support of those claims. For instance, in regard to his challenge to the
discretionary aspects of his sentence, Appellant only briefly summarizes
certain statements made by him and the court at the sentencing proceeding,
and then concedes that he “cannot specifically identify a manifest abuse of
discretion” by the court in fashioning his term of incarceration. Appellant’s
Brief at 11. Additionally, in his second issue challenging the sufficiency and
weight of the evidence to support his convictions, Appellant provides only
four sentences of discussion, cites no legal authority, and does not even
state which specific offense(s), or element(s) thereof, that the
Commonwealth failed to prove. Accordingly, we could deem Appellant’s first
two issues abandoned or waived. See Commonwealth v. Hardy, 918 A.2d
766, 771 (Pa. Super. 2007) (directing that an appellant must “present
arguments that are sufficiently developed for our review” and support those
arguments “with pertinent discussion, … references to the record and with
citations to legal authorities[;]” where an appellant fails to meet these
requirements, thus “imped[ing] our ability to conduct meaningful appellate
review, we may dismiss the appeal entirely or find certain issues to be
waived”).
-3-
J-S13009-17
-4-
IN THE COURT OF COMMON PLEAS OF lVIONTGOMERY COUNTY,
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA : SUPERIOR COURT
: NO. 1071 EDA 2015
v.
}'·\.
: TRIAL COURT
IT}
ALEJANDRO RUIZ-CABRERA : NO. 8513-2013
ROGERS, J. JUNE 21, 2016
OPINION
I. INTRODUCTION
Alejandro Ruiz-Cabrera ("Appellant") has appealed to the Superior
Court of Pennsylvania ("Superior Court") from his judgment of sentence
following a three-day jury trial resulting in a verdict of guilty on one (1)
count of corrupt organizations,1 two (2) counts of possession with intent to
deliver a controlled. substance? two (2) counts of criminal conspiracy to
commit possession with intent to deliver a controlled substance.> one ( 1)
count of dealing in unlawful proceeds" and one (1) count of criminal use of
1
18 Pa.C.S.A. § 91 l(b)(l).
2
35 P.S. § 780-l 13(a)(30).
··- "<,
3
18 Pa.C.S.A. § 903(a).
4
18 Pa.C.S.A. § 511 l(a)(l).
a communication facility" for his role in a narcotics operation spanning
two counties.
1;:;,;
rn
The court sentenced Appellant to not less than three (3) years nor
1,)
more than six (6) years of incarceration on each of the two (2) convictions
for criminal conspiracy to commit possession with intent to deliver, to run
concurrent to one another, with a consecutive ten-year probationary
period; a concurrent term of not less than fifteen ( 15) months nor more
than thirty (30) months on the conviction for corrupt organizations, with a
ten-year consecutive term of probation to run concurrent to the criminal
conspiracy sentences; a concurrent term of not less than one ( 1) nor more
than two (2) years of incarceration on one of the convictions for possession
with intent to deliver a controlled substance with a five-year consecutive
term of probation, the sentence to run concurrent with the sentence on
corrupt organization, a consecutive term of one ( 1) to two (2) years'
incarceration with a five-year probationary period on the conviction for
dealing in unlawful proceeds, and a determination of guilt without further
penalty on the remaining count for possession with intent to deliver a
controlled substance and the count for criminal use of a communication
facility.
The undersigned granted the Commonwealth's motion to nol pros
counts 2, 3, 9, 10, 11, 13, 14, 15, 16, 17 and 18. In essence, the court
imposed an aggregate sentence of four (4) to eight (8) years' incarceration
5
18 Pa.C.S.A. § 75 l 2(a).
2
to be followed by ten (10) years of probation, all to run consecutive to the
((l
sentence imposed in Berks County in a corresponding case wherein
Appellant had pled guilty to other narcotics offenses. Appellant's appeal
,, merits no relief.
,,,. II. FACTS AND PROCEDURAL HISTORY
m
The relevant facts and procedural history underlying this appeal are
as follows. Detective Erick Echevarria of the Montgomery County
Detective Bureau, acting undercover in an ongomg narcotics
investigation," met co-defendant Jose DeJesus Montilla ("Montilla") on
December 17, 2012, in Mount Penn, Berks County, Pennsylvania, to
discuss the quantity of cocaine and met:hamphetamine Montilla would be
able to sell to Detective Echevarria. (Notes of Testimony ("N.T.") Trial
9/ 16/ 14, at 15-16). In particular, Detective Echevarria told Montilla that
he was interested in obtaining three (3) to four (4) pounds of crystal
methamphetamine a week if Montilla could handle that amount. (Id. at
16). Montilla told Detective Echevarria that he could indeed handle that
amount but that he would have to talk to his "brother" first. (Id. at 17).
On that date, Montilla sold Detective Echevarria an ounce (28 grams)
6
A number of law enforcement agencies were involved in the investigation of this drug
trafficking organization, including the Montgomery County District Attorney's Narcotics
Enforcement Team, the Berks County District Attorney's Narcotics Enforcement Team,
the Federal Drug Enforcement Administration (DEA), the United States Department of
Homeland Security, Immigration and Customs Enforcement and Removal Operations,
Exeter Township Police Department, Douglass Township Police Department and the
Pennsylvania State Police. (Notes of Testimony ("N.T.") Trial 9/16/14, at 39; N.T.
Sentencing 12/18/14, at 10-1 I; Affidavit of Probable Cause, filed 10/7 /13, at 5) .
..,
_)
of crystal methamphetamine for one thousand eight hundred dollars
($1,800.00). (Id.).
rn Detective Echevarria met with Montilla again on January 25, 2013
'
,.,. at Zerns Farmers Market in Montgomery County. (Id. at 23). Montilla
mentioned that he had eight (8) ounces of cocaine available for sale. (Id.
,,,.
tn at 25-26). Detective Echevarria told Montilla that he was concerned with
the quality of the cocaine and that what Detective Echevarria was really
interested in was obtaining crystal methamphetamine. (Id. at 25). As the
pair walked around Zerns Farmers Market, Montilla was on his cell phone
talking with someone. (Id. at 26). Montilla explained to Detective
Echevarria that Montilla had people there with him. (Id.). One of
Mantilla's concerns was that the undercover detective was with law
enforcement. (Id. at 22). As they rounded a corner at the market, the pair
came upon two Hispanic males. (Id. at 27). Detective Echevarria shook
the hand of both individuals and noted that one of them sat on a bench
talking on the phone to someone else during the encounter. (Id.).
Detective Echevarria recognized the other individual as co-defendant Juan
Carlos Morales-Soria («Morales-Soria"). (Id.). As Detective Echevarria
shook Morales-Soria's hand in leaving, Morales-Soria slipped Detective
Echevarria a small bag containing a sample of cocaine. (Id. at 28).
Detective Echevarria was instructed to contact Montilla to place an order.
(Id. at 30).
4
Later that same afternoon, Detective Echevarria contacted Montilla
on Mantilla's cell phone to place an order for two (2) ounces of cocaine.
(Id.). Montilla told Detective Echevarria that someone else would meet
him at Zerns Farmers Market. (Id. at 31). Morales-Soria subsequently
contacted Detective Echevarria and they agreed to meet at Zerns. (Id.).
1··'·
rn Morales-Soria asked Detective Echevarria for a description of his car and
told Detective Echevarria that he was in a black Ford Expedition. (Id.). As
Detective Echevarria sat in the parking lot at Zerns, Morales-Soria entered
Detective Echevarria's undercover vehicle and sat next to the Detective.
(Id. at 32). The pair agreed to a price of two thousand dollars ($2,000.00)
for the two (2) ounces of cocaine. (Id.). As Morales-Soria sat in the front
passenger seat, he took apart an energy drink can that he had brought
with him and removed the cocaine from a false compartment in the can.
(Id.). Morales-Soria told Detective Echevarria that they could get him
whatever quantity of cocaine or methamphetamine that he wanted, but to
go through Montilla to place an order. (Id. at 32, 35). Because of
Mantilla's concern that Detective Echevarria may be law enforcement, he
did not contact Montilla for several months. (Id. at 38).
In or around June of 2013, Pennsylvania State Police Trooper
Geraldo Martinez became actively involved in an ongoing investigation
concerning a narcotics organization known to be trafficking large
quantities of crystal methamphetamine in Reading, Berks County and the
surrounding areas. (Id. at 139). Specifically, on .June 10, 2013, Trooper
5
Martinez contacted Appellant on Appellant's primary cell phone," having
previously received information that Appellant was one of approximately
,a
rn four (4) main players in this organization. (Id. at 140). Trooper Martinez
-.
I\}
,.,.. then drove to the garage on the 400 block of North 9th Street in the city of
Reading where Appellant worked as a mechanic and asked to purchase
, .•.
m fourteen (14) grams of crystal methamphetamine. (Id. at 141). After
Appellant made a phone call in Spanish to his "boss" to obtain approval to
negotiate the price, eventually the pair came to an agreement that
Trooper Martinez would pay Nine Hundred Dollars ($900.00) for the
methamphetamine and Appellant would provide a sample of a higher
grade methamphetamine at no additional cost. (Id. at 142-45).
Appellant told Trooper Martinez that the methamphetamine was
located across the street and that he would need some time to retrieve it.
(Id. at 141). Trooper Martinez left the garage and received a call a few
minutes later from Appellant, who told the Trooper to meet him on the
900 block of Green Street in Reading. (Id. at 145-46). Trooper Martinez
spotted Appellant walking in an alleyway, at which point Appellant
entered and sat in Trooper Martinez's front passenger seat and they
exchanged the fourteen (14) grams of crystal methamphetamine for $900
in prerecorded U.S. currency. (Id. at 146). No money was exchanged for
the sample that Appellant provided at the same time. (Id.).
7
Both Trooper Martinez and Detective Echevarria called or sent text messages to
Appellant's primary cell phone number (484) 557-3652 to arrange narcotics buys. (N.T.
Trial 9/16/14, at 105, 140). Appellant also provided Trooper Martinez with a secondary
phone number of ( 484) 529-7983. (Id. at 155).
6
Trooper Martinez contacted Appellant on his cell phone agam on
l}J
July 10, 2013, to purchase more crystal methamphetamine. (Id. at 146-
147). Trooper Martinez again met Appellant at the garage in the 400 block
1·' of North 9th Street and placed an order for another fourteen (14) grams of
crystal methamphetamine. (Id. at 147-148). Trooper Martinez left the
rn area to await Appellant's call that he had the "tires" for the Trooper to
come and examine. (Id. at 149). When the Trooper arrived, Appellant
produced a small white plastic bag containing crystal methamphetamine
from a secret compartment inside of an Arizona Tea can. (Id. at 150).
Trooper Martinez paid Appellant Nine Hundred and Eighty Dollars
$980.00 in prerecorded U.S. currency for the crystal methamphetamine in
that plastic bag and left. (Id.).
On July 31, 2013, Trooper Martinez called Appellant on Appellant's
cell phone to place another order for crystal methamphetamine. (Id. at
150-51). Trooper Martinez went to the same garage to meet Appellant,
only this time Appellant told Trooper Martinez that he only had the higher
grade crystal methamphetamine available to sell to the Trooper, a sample
of which Appellant had already provided. (Id. at 151-52). The two men
agreed on a price. (Id.). Again, Appellant called Trooper Martinez to come
back to the garage to look at the "tires" when Appellant had the narcotics
available. Again, Appellant pulled a plastic bag containing crystal
methamphetamine out of a hidden compartment in an Arizona Tea can
and gave it to Trooper Martinez in exchange for One Thousand Forty
7
Dollars ($1,040.00) in prerecorded currency. (Id. at 152-153).8 When
en Trooper Martinez expressed his amusement over the compartment in the
Ui tea can, Appellant pointed to an Aqua Fina water bottle sitting atop a
toolbox which Appellant explained also had a concealed compartment
underneath the label. (Id. at 153-54).
After a break in communication of approximately seven (7) months,
Montgomery County Detective Echevarria contacted Montilla on August 6,
2013, to inquire about purchasing more crystal methamphetamine. (Id. at
38). Detective Echevarria and Montilla discussed a sale of at least one ( 1)
pound of crystal methamphetamine to take place on August 12, 2013. (Id.
at 39). However, on the morning of August 12, 2013, Detective Echevarria
received a phone call from Montilla, who said his boss now wanted to
provide just a sample first. (Id.).
The two men engaged in a back and forth discussion concerning the
location where someone would meet Detective Echevarria because the
Detective declined to move more than once. (Id. at 40). Detective
Echevarria then received a call from Morales-Soria, who also tried to get
Detective Echevarria to move to a third location approximately forty (40)
minutes away, but Detective Echevarria refused. (Id. at 41). Finally,
8
The Commonwealth charged Appellant separately in Berks County for the offenses
committed solely in Berks County. See Commonwealth v. Alejandro Ruiz-Cabrera, Berks
County Docket No. CP-06-CR-0000031-2014. Eventually, Appellant entered an open
guilty plea to three (3) counts of delivery of a controlled substance under 35 P.S. § 780-
113(a)(30). The Honorable Stephen B. Lieberman sentenced Appellant to incarceration for
an aggregate period of not less than fifteen ( 15) months nor more than ten ( 10) years. Id.
8
Montilla told Detective Echevarria to stay put, that someone would come
to him and Montilla gave Detective Echevarria Appellant's cell phone
number. (Id. at 42).
Detective Echevarria called Appellant's cell phone and Appellant told
Detective Echevarria that he was on his way and would meet the Detective
rn in the parking lot at the McDonald's in Gilbertsville, near Zerns Farmers
Market. (Id. at 43, 77). Appellant arrived in the parking lot as a front-seat
passenger in a black pickup truck. (Id. at 44; Trial Exhibits C-7, C-8).
Appellant exited the pickup truck and entered the front passenger side of
Detective Echevarria's undercover vehicle. (Id. at 46). The two men talked
about the confusion, and Appellant explained that Detective Echevarria
would continue to place orders through Montilla in the future but that
}\ppellant would deliver the narcotics. (Id. at 46) ... Appellant provided
Detective Echevarria samples of crystal methamphetamine in two (2)
plastic bags that Appellant removed from a secret compartment in the
bottom of a water bottle. (Id.). One of the bags contained a sample of the
higher grade, darker methamphetamine and the other bag contained a
sample of the clearer crystal methamphetamine. (Id. at 4 7). Appellant did
not ask for any money, and Detective Echevarria did not give Appellant
any money for the samples. (Id. at 48). After Appellant exited the vehicle,
Detective Echevarria called Montilla and told him that everything went
okay. (Id. at 49).
9
..
!'•
Detective Echevarria next telephoned Montilla on August 27, 2013,
to conclude the deal to purchase at least one ( 1) pound of
methamphetamine. Montilla explained that the price had risen from
1-·'· twenty-seven thousand dollars ($27 ,000.00) to thirty thousand dollars
($30,000.00) for the pound of higher grade methamphetamine. (Id. at 52-
53). Eventually they agreed that Detective Echevarria would also
purchase thirteen thousand dollars ($13 ,000.00) of the lower grade crystal
methamphetamine. (Id. at 53). They scheduled the exchange for August
31, 2013, at around 5:00 p.m. at the McDonald's in Gilbertsville. (Id. at
54, 77).
At approximately 2:50 p.m. on August 31, 2013, Corporal Pasquale
Leporace from the Berks County District Attorney's Office set up
surveillance on the 400 block of North 9th Street in Reading based on
information the District Attorney's office had about this organization. (Id.
at 59, 61). Corporal Leporace noticed two (2) individuals sitting inside of a
parked Dodge Charger. (Id. at 62). To get a better view and a possible
identification, Corporal Pasquale drove by the parked vehicle and
identified co-defendant Alder Hernandez-Solorio ("Hernandez-Solorio").
(Id. at 64). After Corporal Pasquale turned around and drove back, he saw
the two men from the Charger speaking with the driver of the same black
pickup truck that law enforcement had seen Appellant riding in as a
passenger to deliver the methamphetamine to Detective Echevarria on
August 12, 2013. (Id. at 65).
10
Detective Echevarria arrived at the McDonald's in Gilbertsville at
around 5:00 p.m. and let Montilla know that he had arrived. (Id. at 77).
Montilla directed him to move across the street to Zerns Farmers Market.
1-'-- (Id. at 77-78). Montilla informed Detective Echevarria that he would be in
a blue Kia. (Id. at 78).
Detective Michael Reynolds of the Montgomery County District
Attorney's Office was working that day as a surveillance officer to assist in
the investigation and help protect Detective Echevarria. (Id. at 67, 69). As
Detective Reynolds was entering the Zerns Farmers Market parking lot, he
observed a Dodge Charger occupied by two (2) males, later identified as
co-defendants Hernandez-Solorio and Eloy Solo_rio-Flores. (Id. at 70, 89).
Detective Reynolds confirmed with other law enforcement that this Dodge
· Charger was the same vehicle observed earlier in the afternoon up on the
400 block of North 9th Street in Reading. (Id. at 71). The Dodge Charger
eventually parked in front of the Kia and Detective Echevarria's
undercover vehicle. (Id. at 72-73).
After Detective Echevarria and supporting law enforcement officers
had moved their vehicles to the Zerns' parking lot, Detective Echevarria
approached the blue Kia Sorento SUV on foot. (Id. at 79). He noticed that
someone other than Montilla was seated in the Kia and later identified the
man as co-defendant Hector Cucuas ("Cucuas"). (Id.). After Cucuas told
Detective Echevarria that he was a friend of Montilla's, Detective
Echevarria asked to see the methamphetamine. (Id. at 80). Once
Il
Detective Echevarria confirmed that the box inside of a bag in the back
seat of the Kia contained narcotics, he gave a portion ($4,000.00) of the
'"·
I.r~.;
m agreed-upon price to Cucuas and explained that he had to return to his
,.
"
car to get the rest. (Id. at 80, 83-84, 87). Detective Echevarria then
returned to his undercover vehicle to provide some separation for other
01 law enforcement on the scene to make their arrests. (Id. at 88). The
officers arresting Cucuas recovered a loaded Glock 9-millimeter firearm
and three (3) cell phones in addition to just over one (1) pound (16.45
ounces) of the higher grade methamphetamine and just over half a pound
(8.12 ounces) of the lesser grade methamphetamine, along with the
$4,000.00 in currency from inside of the Kia Sorenta. (Id. at 89-90, 121,
123, 125, 130, 131-32; Trial Exhibits C-17, 30, 38, 40-41). The officers
who arrested Hernandez-Solorio and Solorio-Flores from the Dodge
Charger recovered three (3) cell phones from the center compartment,
dash slot and passenger floor as well as a cell phone from the right front
pants pocket of passenger Hernandez-Solorio. (Id. at 74, 93, 99; Trial
Exhibits C-19, 20, 21 and 22).
After obtaining search warrants for the phone records, Detective
Echevarria matched up phone calls and text messages from the call detail
records provided by the cell phone providers. (Id. at 102). Through
Detective Echevarria's investigation, law enforcement was able to
determine who the phones belonged to and link up the text messages and
phone calls concerning the August 31, 2013 delivery and bust. (Id. at
12
100-114; Trial Exhibit C-27). In that regard, the Commonwealth
1))
ascertained that Appellant had used two (2) phones to communicate with
other members of the organization as well as with Detective Echevarria.
(Id. at 105, 112-14). Of particular interest were calls and text messages to
and from Montilla to and from Appellant after their codefendants had not
1-··
Or returned from the drug deal on August 31 sr, the codefendants having
been arrested unbeknownst to Montilla and Appellant at the time. (Id.).
Appellant was arrested on or about October ·7, 2013. On December
19, 2013, the Commonwealth filed a notice of joinder of cases providing
Appellant notice that the Commonwealth intended to try Appellant's case
together with co-defendants Solaria-Flores, Hernandez-Solorio, Montilla,
Morales-Soria and Cucuas. (Commonwealth's Notice of Joinder of Cases
Pursuant to Pennsylvania Rule of Criminal Procedure 582, filed
12 / 19 / 13). This court scheduled the matter for a jury trial to commence
on September 15, 2014. The five co-defendants entered pleas of guilty
before the commencement of trial.
On September 12, 2014, the Commonwealth filed a motion in limine
to admit other bad acts under Pa.R.E. 404(b) seeking allowance to admit
evidence of Appellant's three (3) narcotics sales to undercover Trooper
Geraldo Martinez at the garage in the city of Reading, Berks County.
Specifically, the Commonwealth requested the court's permission to elicit
evidence of the three (3) prior narcotics transactions to prove intent as
well as a common scheme, plan and design and to negate the anticipated
13
defense that Appellant was unaware of his involvement in a larger
organization or conspiracy and unaware that he was delivering a sample
that would result in a larger transaction. (Commonwealth's Motion in
1--• Limine to Admit Other Bad Acts under Pa.R.E. 404(b), filed 9 / 12/ 14; N.T.
Trial9/15/14, at 12-13).
After swearing in the jury for the trial, the court heard oral
argument by Counsel outside the presence of the jury, on Monday
afternoon, September 15, 2013. (N.T. Trial 9/15/13, at 12-16). Following
argument and an opportunity to review the law, the undersigned granted
the Commonwealth's rnotion.? The undersigned also stated to Defense
Counsel that the court would not be opposed to giving a limited jury
instruction if Counsel wanted to prepare and submit one for approval.
(N.T. 9/ 15/ 14, at 40).
Prior to the start of testimony, Defense Counsel submitted a
proposed limited jury instruction to be read following the testimony of the
undercover State Trooper who had conducted the controlled buys from
Appellant in Reading, Berks County.t? (N.T. Trial 9/16/14, at 8-9, Trial
9
The court explained as follows:
It's being granted because it will afford the Commonwealth the opportunity
to show intent, common scheme, plan, and design. I think this case is made
stronger, frankly, by the fact that the Commonwealth charged under corrupt
organizations, because in the bill of information it referenced pattern, and
certainly that would go to the common scheme, plan, and design.
(N.T. 9/15/14, at 39-40).
'0 The court also explained to Counsel on the record the following:
14
Exhibit D-1). On September 16, 2014, the jury heard the testimony of
Detective Echevarria, Trooper Martinez, two of the surveillance officers, an
officer on the arrest team and Detective Michael Fedak. After Trooper
,·,
..:,
' Martinez testified, the undersigned read the following limiting instruction:
Members of the jury, you have just heard the testimony of
Trooper Geraldo Martinez. You heard testimony concerning
acts that were alleged to have occurred in Berks County,
Pennsylvania.
The defendant is not charged in this case with those alleged
deliveries, and they are not before you in this case to
determine guilt or innocence. You are free, as with any
witness, to accept or reject, in whole or in part, the testimony
presented to you. The Commonwealth admitted this evidence
from which it asks you to draw an inference that the
defendant had knowledge his acts were part of a conspiracy
through a common scheme, plan, or design. I instruct you
that if you accept this testimony, to only consider it for that
limited purpose.
(N.T. Trial 9/ 16/ 14, at 157).
Detective Fedak testified as an expert in drug trafficking and
distribution. (Id. at 163). Specifically, Detective Fedak testified, inter alia,
about the significance of providing samples of narcotics before the actual
exchange of money as it relates to Appellant's role in the organization, the
I read over the jury instructions for corrupt organizations last evening. The
jury instruction references that the Commonwealth must prove that the
defendant committed two or more crimes that are called acts of
racketeering, and I confirmed with the Commonwealth in the presence of
defense counsel that those two crimes that the Commonwealth -- more
[than] that the Conunonwealth intends to prove complied with that
requirement under corrupt organizations. Neither one of those or any of
those are the alleged offenses that I permitted to be referenced as part of the
404(b) prior bad acts.
(N .T. 9/ 16/14, at I 0).
15
structure of the organization, as well as the use of cell phones as a
necessity in this type of organization in order for the enterprise to be
t2i:
rn
<, successful. (Id. at 164-73).
Although Appellant did not testify at trial, he denied any knowledge
of a conspiracy or larger organization. His defense, for the most part,
in consisted of the fact that he did not receive any money in exchange for the
samples of narcotics he provided to the undercover detective in
Montgomery County, that he was not present for the larger transaction on
August 31, 2013, and that any drugs he may have sold, he did so to
support his own habit and not as part of a conspiracy.
The jury returned its verdict of guilty on all counts on Wednesday,
September 17, 2014. The court deferred sentencing until such time as the
Adult Probation Department could provide a PPI Evaluation and a Pre-
Sentence Investigation Report.
At sentencing on December 18, 2014, Appellant again denied any
involvement in a conspiracy or an organization. (N.T. Sentencing
12/18/14, at 14-15). As it pertained to Appellant's case in Berks County,
the undersigned explained his reasoning for imposing a consecutive
sentence as follows:
Before imposing sentence, I have considered the presentence
investigation report significantly as well as the PPI report. I
was the trial judge in this case, and I've had the opportunity
to review all the testimony as it was presented. I've also
certainly had the opportunity now to hear [Appellant} by way
of a statement in allocution as well as the well-made
arguments by counsel. So I will enter the following sentence:
16
* * * *
Significantly -- and I do want to say significantly -- this
sentence will not commence -- will run consecutive to the
sentence that's imposed in Berks County. It's important that
that be made part of the record. It furthers, in my judgment,
the need to differentiate the crimes committed in Berks
County from Montgomery County. It also demonstrates the
nature of this organization being a multi-county organization.
m (Id. at 15-1 7).
Counsel for Appellant and Appellant both filed post-sentence
motions. (Defendant's Counsel's Post-Sentence Motion, filed 12/ 19 / 14;
Defendant's pro se Motion for Post-Sentence Relief, filed 1/23/ 15). At
argument on Friday, March 20, 2015, Counsel argued both motions. (N.T.
Hearing on Defendant's Petition for Post-Sentence Relief 3/20/ 15). The
court denied Appellant's motions by order dated April 3, 2015. On April
17, 2015, Appellant filed a notice of appeal to the Superior Court. The
undersigned directed Appellant to file a concise statement of the errors
complained of on appeal ("Statement") by order dated April 20, 2015.
Appellant filed his Statement on May 7, 2015.
III. ISSUES
Appellant now raises the following issues on appeal:
1. [A-3) The Honorable Court committed an error of law
and/or abuse of discretion when it [sic) [Appellant's] motion at
trial and in Post Sentence Motions for a new trial where the
Commonwealth failed to present sufficient evidence for the
trier of fact to find [Appellant] guilty of the crimes charged.
2. [A-2] The Honorable Court committed an error of law
and/ or abuse of discretion when it denied [Appellant's] motion
17
fl);
::1
at trial and in Post Sentence Motions for a new trial where the
OJ verdict was against the weight and sufficiency of evidence.
3. (A-4] The Honorable Court committed an error of law
and/ or abuse of discretion when it allowed evidence of prior
bad acts committed in Berks County and subject to an open
case alleging evidence of sales of narcotics, common phone
numbers and other evidence that had not been adjudicated on
at the time of trial via the testimony of Trooper Martinez.
4. (A-5] The Honorable Court committed an error of law
and/ or abuse of discretion when it denied post-trial motions
for a new trial based on the evidence allowed under 404[bJ
introduced by Trooper Martinez.
5. (A-6] The Honorable Court committed an error of law
and/ or abuse of discretion when it allowed prior
unadjudicated acts, via testimony of Trooper Martinez, alleged
to have occurred in Berks County where [Appellant] would
have had to waive his 5th Amendment rights and in violation
of Due Process to defend himself in the Montgomery County
case with the case being open in Berks County,
6. [A-1] The Honorable Court committed an error of law
and/ or abuse of discretion when it denied [Appellant's] Post
Sentence Motion for a new Sentence because the sentence
was unduly harsh and excessive.
(Statement, filed May 7, 2015). 11
IV. DISCUSSION
In his first two issues on appeal, Appellant seeks either a judgment
of acquittal or a new trial, contending that the Commonwealth failed to
present sufficient evidence and that the verdict was against the weight of
the evidence. Appellant is mistaken.
The appellate scope and standard of review are long settled:
11
The court has reordered Appellant's issues for ease of disposition. Appellant's original
order of issues presented in his Statement is noted with an [A-*.].
18
.;
I···•
As a general matter, [appellate] review of sufficiency claims
requires that we evaluate the record "in the light most
favorable to the verdict winner giving the prosecution the
benefit of all reasonable inferences to be drawn from the
evidence." Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d
745, 751 (2000). "Evidence will be deemed sufficient to
support the verdict when it establishes each material element
of the crime charged and the commission thereof by the
accused, beyond a reasonable doubt." Commonuseolth. v.
Brewer, 876 A.2d 1029, 1032 (Pa.Super.2005). Nevertheless,
"the Commonwealth need not establish guilt to a
mathematical certainty." Id.; see also [ Aguado, 760 A.2d at
1185] ("[TJhe facts and circumstances established by the
Commonwealth need not be absolutely incompatible with the
defendant's innocence."). "[W)here no single bit of evidence
will by itself conclusively establish guilt, the verdict will be
sustained where the totality of the evidence supports the
finding of guilt." Commonwealth v. Thomas, 522 Pa. 256, 561
A.2d 699, 704 (1989).
Thus, our Courts have recognized that proof of guilt may be
inferred entirely from evidence of circumstances that attended
the commission of the crime. See Breuier, 876 A.2d at 1032.
"The fact that the evidence establishing a defendant's
participation in a crime is circumstantial does not preclude a
conviction where the evidence coupled with the reasonable
inferences drawn therefrom overcomes the presumption of
innocence." Id. (quoting Commonwealth v. Murphu, 795 A.2d
1025, 1038-39 (Pa.Super.2002)). Nevertheless, "[t]he
requirement of the law [remains} that in order to warrant a
conviction[,] the facts and circumstances proved must be of
such character as to produce a moral certainty of the guilt of
the accused beyond any reasonable doubt." Commonwealth v.
Bybel, 531 Pa. 68, 611 A.2d 188, 189 ( 1992) (quoting
Commonwealth v. New, 354 Pa. 188, 47 A.2d 450, 455
(1946)).
Commonwealth v. Kinard, 95 A.3d 279, 291-92 (Pa.Super. 2014) (en bane)
(quoting Commonwealth v. Barker, 70 A.3d 849, 854 (Pa.Super. 2013) (en
bane)). Accord Commonwealth v. l\llcCurdy, 943 A.2d 299, 301-03
(Pa.Super. 2008) (finding evidence sufficient to support conviction for
19
corrupt organizations under 18 Pa.C.S.A. § 91 l(b)(3)). Finally, an
appellate court will review the entire trial record, even evidence which is
impermissibly introduced, when evaluating a sufficiency claim.
Commonwealth v. Sanders, 42 A.3d 325, 329 n.1 (Pa.Super. 2012 (citing
Commonwealth v. Reed, 605 Pa. 431, 436, 990 A.2d 1158, 1161 (2010));
accord Commonwealth v. Tejada, 107 A.3d 788, 793 (Pa.Super. 2015)
(citation omitted).
Herein, the Commonwealth charged Appellant with corrupt
organizations, 12 possession of a controlled substance with intent to
deliver, 13 criminal conspiracy to commit possession with intent to deliver a
controlled substance.!" dealing in unlawful proceeds+" and criminal use of
12 Pursuant to 18 Pa.C.S.A. § 91 l(b)(l), the Commonwealth had to prove beyond a
reasonable doubt that Appellant, having received income derived, directly or indirectly,
from a pattern of racketeering activity in which he participated as a principal, did
unlawfully use or invest, directly or indirectly, any part ·of such income, or the proceeds of
such income, in the acquisition of any interest in, or the establishment or operation of any
enterprise.
13
Pursuant to 35 P.S. § 780-113(a)(30), the Commonwealth had to prove beyond a
reasonable doubt that Appellant did deliver or possess with intent to deliver a controlled
substance classified in Schedule I, II, III or IV to wit: Methamphetamine.
14
Pursuant to 18 Pa.C.S.A. § 903(a) and 35 P.S. § 780-l 13(a)(30), the Commonwealth
had to prove beyond a reasonable doubt that Appellant had the intent of promoting or
facilitating the crime of possession with the intent to deliver a controlled substance with
another and agreed- that they or one or more of them would engage in conduct which
constitutes such crime or attempt or solicitation to commit such crime; or agreed 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. See Commonwealth v. Kinard, 95 A.3d 279, 293
(Pa.Super. 2014) (en bane) (citation omitted); Commonwealth v. Watley, 81 A.3d l08,
115-16 (Pa.Super. 2013) (en bane) (quoting Commonwealth v. Feliciano, 67 A.3d 19, 25-
26) (en bane)).
15
Pursuant to 18 Pa.C.S.A. § 511 I (a)(l ), the Commonwealth had to prove beyond a
20
communication Iacility.w Regarding the charge of criminal conspiracy in
particular, the Superior Court in Kinard, supra reiterated the following
precepts:
1.,;. "An explicit or formal agreement to commit crimes can
seldom, if ever, be proved and it need not be, for proof of a
l'719 A.2d 778, 785 (Pa.Super.1998) (en bane), appeal
denied, 559 Pa. 689, 739 A.2d 1056 (1999) (citations omitted).
Therefore, where the conduct of the parties indicates that they
were acting in concert with a corrupt purpose in view, the
existence of a criminal conspiracy may properly be inferred.
Common.wealth v. Snyder, 335 Pa.Super. 19, 483 A.2d 933,
942 (Pa.Super.1984). This court has held that the presence of
the following non-exclusive list of circumstances when
considered together and in the con text of the crime may
establish proof of a conspiracy: ( 1) an association between
alleged conspirators, (2) knowledge of the commission of the
crime, (3) presence at the scene of the crime, and (4}
participation in the object of the conspiracy. Commonwealth
v. Swerdlow, 431 Pa.Super. 453, 636 A.2d 1173, 1177
(Pa.Super.1994).
95 A.3d at 293.
Instantly, viewing the entire record in the light most favorable to the
Commonwealth, giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence, the evidence adduced at trial
established the material elements of each crime charged. Specifically, the
reasonable doubt that Appellant conducted a financial transaction with knowledge that the
property involved represented the proceeds of unlawful activity, he acted with the intent to
promote the carrying on of the unlawful activity.
16
Pursuant to 18 Pa.C.S.A. § 75 I 2(a), the Commonwealth had to prove beyond a
reasonable doubt that Appellant did unlawfully use a communication facility to commit,
cause or facilitate the commission or the attempt thereof of any crime, to wit: possession
with intent to deliver a controlled substance.
21
. . . -•
,-1
evidence demonstrated that Appellant was involved in a conspiracy with
Cucuas, Hernandez-Solorio, Montilla, Morales-Soria and Solorio-Flores to
engage in the business of selling illegal narcotics. Contrary to Appellant's
assertion otherwise, the fact that Appellant did not personally receive cash
in exchange for the samples at the time he delivered them to Detective
t:n Echevarria is of no momeht. Further, the jury found the assertion that
Appellant had no "knowledge of the greater amount" of narcotics for
possible delivery at a later time incredible under the circumstances.
It is noteworthy that Appellant did not specify how the evidence was
insufficient or specifically which of the convictions were unsupported with
sufficient evidence. However, having listened to each witness and
observed all of the evidence during the entire trial, this court concludes
that the evidence was sufficient to support each of Appellant's convictions
as found by the jury. During this three-day trial, the jurors heard
Montgomery County Detective Echevarria testify about his specific
dealings with co-defendants Montilla and Morales-Soria and Appellant by
cell phone as well as in person. Montilla gave Detective Echevarria
Appellant's cell phone number on August 12, 2013, as the contact
number for the person who would deliver the sample of
methamphetamine. Detective Echevarria spoke with Appellant on the c.ell
phone number that co-defendant Montilla had provided. Appellant arrived
to deliver the sample in the same black pickup truck on August 12, 2013,
that Corporal Leporace saw in Reading earlier in the day on August 31,
22
2013, the day of the final large delivery. Appellant told Detective
Echevarria to place future orders through Montilla and Appellant would
deliver those orders. Co-defendants Hernandez-Solorio and Solorio-Flores
arrived at Zerns for the large quantity of methamphetamine deal on
August 31, 2013, in the same Dodge Charger that Corporal Lepo race sa ,v
in Reading earlier that day talking to people in the same black pickup
truck used by members of this organization.
The jury also heard the testimony of State Trooper Martinez who
described in detail the three (3) controlled buys of methamphetamine on
June 10, July 10 and July 31, 2013, for cash from Appellant in Reading
after Appellant first provided a sample and used the same type of
containers with a secret compartment to hide the sample that he used
when he brought the two samples to Detective Echevarria in Gilbertsville
.on August 12, 2013. In addition, the jury heard the testimony by officers
of the arrests of Appellant's co-defendants leading to the discovery of cell
phones used by the participants in this conspiracy. Detective Echevarria
explained to the jury how he obtained the phone records for these cell
phones and matched up phone calls and text meseages amongst the .
participants including Appellant. Finally, the jury heard the testimony of
Detective Fedak, who explained the significance of providing samples
before the actual exchange of money and delivery of the larger quantity of
illegal narcotics.
23
In the instant case, there was ample evidence in the record from
which a reasonable jury could conclude that Appellant was one of the men
involved in a conspiracy to possess illegal narcotics with the intent to
distribute as well as a participant in a corrupt organization. The
Commonwealth met its burden of proof for each and every element of the
rn crimes charged.
Additionally, the well-established standard of review on a claim that
a verdict is against the weight of the evidence is as follows:
The weight of the evidence is exclusively for the finder of fact
who is free to believe all, part, or none of the evidence and to
determine the credibility of the witnesses. An appellate court
cannot substitute its judgment for that of the finder of fact.
Thus, we may only reverse the [trial} court's verdict if it is so
contrary to the evidence as to shock one's sense of justice.
Moreover, where the trial court has ruled on the weight claim
below, an appellate court's role is not to consider the
underlying question of whether the verdict is against the
weight of the evidence. Rather, appellate review is limited to
whether the trial court palpably abused its discretion in ruling
on the weight claim.
Commonwealth v. Serrano, 61 A.3d 279, 289 (Pa.Super. 2013) (quoting
Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408
(2003)); accord Commonwealth v. Hankerson, _ A.3d _,_ (2015 WL
3549969 (Pa.Super. 2015) (citations omitted).
The undersigned had the opportunity to listen to the testimony
described above, observe the witnesses' demeanor and the demonstrative
evidence as well as observe the jury throughout this trial. It was
exclusively within the jury's province to weigh the Commonwealth's direct
24
and circumstantial evidence. Appellant's convictions are not so contrary
to the evidence as to shock one's sense of justice. Accordingly, Appellant's
sufficiency and weight claims merit no relief.
In his third, fourth and fifth issues on appeal, Appellant asserts that
the court erred or abused its discretion in allowing evidence in this trial of
Appellant's narcotics transactions with an undercover officer which
occurred in Berks County and for which charges were awaiting
adjudication in Berks County. Appellant argues that the evidence was
more prejudicial than probative and that the court erred in allowing this
evidence because to defend against it would have required Appellant to
waive his Fifth Amendment rights in this case to defend against the Berks
County allegations. Appellant asserts that his testimony in this case then
would have been used against him in the Berks County case. (Post
Sentence Motion Brief, filed 1/ 12/15, at 8).11
The Commonwealth proffered Trooper Martinez's testimony
concerning three (3) prior narcotics transactions with Appellant to
demonstrate intent as well as a common scheme, plan or design and to
dispel Appellant's defense that he was unaware of his involvement in a
conspiracy or a larger corrupt organization in the Montgomery County
case (in other words, a lack of knowledge). In support, the Commonwealth
cited Commoniuealth. v. Pattalcos, 754 A.2d 679 (Pa.Super. 2000) (evidence
17
Counsel candidly admitted that he had not been able to find any case law on point to
submit to the court specifically on open cases in different jurisdictions. (N.T. Hearing on
Defendant's Petition for Post-Sentence Motion and Relief, filed 3/20/ 15, at 8).
25
of prior uncharged drug transactions properly admitted to establish
relationship between parties) and Commonwealth v. Echevarria, 575 A.2d
620 (Pa.Super. 1990) (evidence of prior uncharged drug transactions
1·' properly admitted to prove intent). According to Appellant, however,
"knowledge of the greater amount ... has always been the sticking point".
m (N.T. Trial 9/ 15/ 14, at 15). Appellant proffers that he is entitled to a new
trial as a result of this court's error. The court disagrees.
Writing for the majority on the en bane panel in Kinard, supra, the
Honorable Kate Ford Elliott explained Pennsylvania law on this issue in
pertinent part as follows:
Admission of evidence rests within the discretion of the trial
court, and we will not reverse absent an abuse of discretion.
Commonwealth u. Washington, 63 A.3d 797, 805
(Pa.Super.2013). "Discretion is abused when the course
pursued represents not merely an error of judgment, but
where the judgment is manifestly unreasonable or where the
law is not applied or where the record shows that the action is
a result of partiality, prejudice, bias or ill will."
Commonwealth v. Martinez, 917 A.2d 856, 859
(Pa.Super.2007).
Generally speaking, evidence is admissible if it is relevant,
that is, "if ft logically tends to establish a material fact in the
case, tends to make a fact at issue more or less probable or
supports a reasonable inference or presumption regarding a
material fact." Commonwealth v. Williams, 586 Pa. 553, 581,
896 A.2d 523, 539 (2006) (citation omitted); Pa.R.E. 402. It is
settled law in this Commonwealth that other bad acts
evidence is inadmissible to prove a defendant's propensity to
commit crime. Commonwealth v. Brookins, 10 A.3d 1251,
1256 (Pa.Super.2010), appeal denied, 610 Pa. 625, 22 A.3d
1033 (2011). Nonetheless, bad acts evidence may be
introduced for other limited purposes, including, but not
limited to, establishing motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of mistake
26
or accident, common scheme or design, modus operandi, and
the natural history of the case. Id.; Pa.RE. 404(b)(2). This
evidence is admissible only if the probative value of the
evidence outweighs its potential for unfair prejudice.
' .
'" It has been succinctly stated that (t)he purpose of this
rule is to prevent the conviction of an accused for one
crime by the use of evidence that he has committed other
unrelated crimes, and to preclude the inference that
,.,. because he has committed other crimes he was more
ITT likely to commit that crime for which he is being tried.
The presumed effect of such evidence is to predispose the
minds of the jurors to believe the accused guilty, and
thus effectually to strip him of the presumption of
innocence.
Commonwealth u. Spruill, 480 Pa. 601, 604-605, 391 A.2d
1048, 1049 (1978).
Kinard, supra at 284. Intent, for example, is a mental state which "can be
inferred from conduct." Cotrunonioealtli v. Ross, 57 A.3d 85, 101
(Pa.Super. 2012) (en bane) (citation omitted).
The Pennsylvania Rules of Evidence specifically provide as follows:
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is
not admissible to prove a person's character in order to show
that on a particular occasion the person acted in accordance
with the character.
(2) Permitted Uses. This evidence may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident. In a criminal case this evidence is
admissible only if the probative value of the evidence
outweighs its potential for unfair prejudice.
Pa.R.E. 404(b).
27
Once the court concludes that the evidence is admissible for one or
more of the limited purposes, it must then conduct a balancing inquiry to
determine whether the evidence's probative value outweighs its potential
for unfair prejudice. Commonwealth v. Hairston, 624 Pa. 143, 84 A.3d
657, 665, 667 (2014) (citation omitted). Evidence of other crimes will not
m be prohibited merely because it is harmful to the defense. Id. at 666
(citing Commonwealth v. Dillon, 592 Pa. 351, 925 A.2d 131 141 (2007)).
Rather, "'unfair prejudice' means a tendency to suggest decision on an
improper basis or to divert the jury's attention away from its duty of
weighing the evidence impartially." Hairston, supra (citing Pa.R.E. 403
cmt.).
Finally, Pennsylvania appellate courts have also reiterated the
presumption that a jury will follow the trial court's instructions.
Commonwealth v. Hoover,_ Pa._, 107 A.3d 723, 731-32 (2014) (citation
omitted); Commonwealth v. Travers, 564 Pa. 362, 366, 768 A.2d 845, 847
(2001) (citations omitted). In both Kinard, supra and Echevarria, supra,the respective trial court gave a cautionary instruction to the jury which
outlined the purposes for which the prior bad act evidence at issue could
be considered. In both cases, the Superior Court determined that the
limiting instruction regarding the purpose for which the jury could
consider the evidence either cured or minimized any possible prejudicial
effect of the evidence at issue. Kinard, supra at 287; Echevarria, supra at
623. Accord Hairston) supra at 160, 84 A.3d at 666-67 (discussing cases).
28
The Commonwealth sought to introduce evidence of Appellant's
prior alleged crimes in Berks County to demonstrate the intent element of
the conspiracy to commit possession with intent to deliver charge as well
as the absence of mistake and a common scheme, plan, or design.
(Commonwealth's Motion in Limine to Admit Other Bad Acts Under
Pa. R.E. 404[b], filed 9 / 12/ 14). The proffered evidence included three (3)
deliveries by Appellant to an undercover state trooper with similarities to
the instant crimes as follows: 1) the first delivery included a sample of a
high grade methamphetamine before the purchase and delivery of a larger
quantity, 2) the Reading, Berks County sales were approximately one ( 1)
month earlier of the delivery of the sample in Gilbertsville, Montgomery
County, I8 3) Reading and Gilbertsville are relatively close geographically
with Reading located in eastern Berks County and Gilbertsville in western
Montgomery County, 4) the use of containers with concealed
compartments used to hide the illegal narcotics samples in both counties
and 5) Appellant used the same phone number to conduct business in
both counties.
This testimony was directly relevant to the charges of criminal
conspiracy to commit possession with intent to deliver a controlled
substance (methamphetamine). The evidence was probative of Appellant's
knowledge that he was part of a group of men engaged in the business of
18
Appellant's sales to Trooper Martinez occurred on June 10, 2013; July 10, 2013, and
July 31, 2013. Appellant's delivery of the sample to Detective Echevarria occurred on
August 12, 2013.
29
selling illegal narcotics. Trooper Martinez's testimony was also relevant to
m
... ·i
establish the chain of events and Appellant's course of criminal conduct.
Defendant's claim that he was not part of a conspiracy or a larger
1·'·· organization is buttressed by evidence which includes the fact that he had
to call his "boss" in order to negotiate the price of the methamphetamine.
Further, Trooper Martinez's testimony provided context for why law
enforcement was in Reading performing surveillance when they observed
the occupants of the Dodge Charger speaking with occupants of the black
pickup truck. As a result, the jury could infer a conspiratorial agreement
to engage in the sale of methamphetamine based on the direct and
circumstantial evidence presented by the Commonwealth.
Although this prior bad acts evidence may have been prejudicial, it
was not unduly so. Moreover, any prejudicial effect of Trooper Martinez's
testimony was cured by this court's limiting instructions to the jury. As
the trial courts did in Kinard, supra and Echevarria, supra, this court
provided the jury with an instruction drafted by Counsel regarding the
limited purpose for which they could consider the evidence. Also, as in
those cases, the jury was then free to accept or reject the evidence and to
give it whatever weight they felt it deserved.
The court notes that Appellant also based his objection to the
introduction of Trooper Martinez's testimony in part on his Fifth
30
Amendment privilege against self-incrimination.t? While the argument
appears to have some merit on its face, after a review of the relevant law,
this court concluded any reliance on that argument was misplaced.
"The Fifth Amendment provides 'no person ... shall be compelled in
-,,.
any criminal case to be a witness against hirnself].]". Commonwealth v.
rn Cooley, _ Pa. _, _, 118 A.3d 370, 375 (2015) (quoting U.S. Const.
amend. V); Commonwealth v. Knoble, 615 Pa. 285, 290, 42 A.3d 976, 979
(2012). "The Fifth Amendment privilege is not self-executing, and answers
are generally not considered compelled 'within the meaning of the Fifth
Amendment unless the witness is required to answer over his valid claim
of the privilege." Velori.c v. Doe,_ A.3d _,_(Pa.Super. 2015) (2015 WL
5316868 at *5) (quoting Knoble, supra). "[T)he Fifth Amendment
proscribes only self-incrimination obtained by a genuine compulsion of
testimony." Commonwealth v. Brown, 26 A.3d 485, 497 (Pa.Super. 2011)
(emphasis added) (citing Commonwealth v. Padillas, 997 A.2d 356, 362
(Pa.Super. 2010)). Compulsion exists for Fifth Amendment purposes
when some factor denies an individual "the 'free choice to admit, to deny,
or to refuse to answer."' Brown, supra (citation omitted) (holding
requirement that minor must admit guilt to demonstrate amenability to
rehabilitation in juvenile system during decertification hearings violated
19
Counsel argued as follows: "it deprives my client of his Fifth Amendment rights
because he's got an open county [sic] in Berks County, Pennsylvania, and he would have
to waive his Fifth Amendment rights to give his version, potentially, as a defense in this
matter." (N.T. Trial 9/ 15/14, at 15) ( emphasis added).
31
minor's Fifth Amendment privilege). «Absent some officially coerced self-
accusation, the Fifth Amendment privilege is not violated by even the most
damning admissions." Padillas, supra (quoting United States v.
,<
I -~.1
Washington, 431 U.S. 181, 187, 97 S.Ct. 1814, 1818-19, 52 L.Ed.2d 238,
244, 245 (1977)). "[A]n attempt to invoke the Fifth Amendment privilege is
tn specific to the testimony being compelled." Veloric, supra.
Instantly, this court opines that the possibility that Appellant would
have had to waive his Fifth Amendment rights to give his version of the
events in Berks County as a defense in this matter does not constitute a
genuine compulsion of testimony as defined by the case law to invoke the
privilege. There had been no genuine compulsion at the time of trial and
Appellant offered no specific argument as to how he would not be able to
invoke the privilege and refuse to answer questions about the Berks
County charges if he decided to take the stand in his defense and had the
Commonwealth posed any questions about his prior bad acts. Appellant
was not on trial for the three offenses charged in Berks County, which the
court made clear to the jury. As stated above, the court admitted the
evidence for a very limited purpose. The requested relief is not due.20
In Appellant's final issue on appeal, he claims that the court erred
or abused its discretion in denying his post-sentence motion to modify his
sentence. Specifically Appellant complains that his sentence of four (4) to
20
Moreover, from a practical standpoint, Appellant subsequently pled guilty to the Berks
County charges. If the requested remedy, a new trial, were to be granted, those offenses
are now convictions and the issue would be moot.
32
eight (8) years, although clearly within the guidelines, imposed
!;,•.
\_!._l
consecutive to the Berks County case wherein Judge Lieberman sentenced
-,
-,
him to fifteen ( 15) months to ten ( 10) years, is unduly harsh and excessive
because evidence of the Berks County buys was the "determining factor"
in the Montgomery County convictions. (Appellant's Post Sentence Motion
,.,.,,.
IJi: Brief, filed 1/ 12/ 15, at 2-3). Appellant suggests that he has been
sentenced twice for the same offenses. Appellant is mistaken and his
claim lacks merit.
The Superior Court reviews a claim involving the discretionary
aspects of sentencing utilizing the following principles:
Sentencing is a matter vested in the sound discretion of
the sentencing judge, and a sentence will not be
disturbed on appeal absent a man ifest abuse of
discretion. In this context, an abuse of discretion is not
shown merely by an error in judgment. Rather, the
appellant must establish, by reference to the record, that
the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice,
bias or ill will, or arrived. at a manifestly unreasonable
decision.
Commonwealth v. Shugars,
895 A.2d 1270, 1275
(Pa.Super. 2006). In reviewing a sentence on appeal, the
appellate court shall vacate the sentence and remand the
case to the sentencing court with instructions if it. finds:
( 1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines
erroneously;
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly
unreasonable; or
(3) the sentencing court sentenced outside the
()) sentencing guidelines and the sentence is unreasonable.
In all other cases [,) the appellate court shall affirm the
sentence imposed by the sentencing court.
42 Pa.C.S.A. § 9781.
Commonwealth v. Lewis, 45 A.3d 405, 411 (Pa.Super. 2012).
In addition, our Supreme Court has noted that:
"the guidelines have no binding effect, create no
presumption in sentencing, and do not predominate over
other sentencing factors-they are advisory guideposts
that are valuable, may provide an essential starting
point, and that must be respected and considered; they
recommend, however, rather than require a particular
sentence."
Commonwealth v. Glass, SO A.3d 720, 727-28 (Pa.Super. 2012) (quoting
Commonwealth v. Perry, [612 Pa. 557, 571,J 32 A.3d 232, 240 (2011)).
The Peny Court further explained the sentencing court's discretion as
follows:
An abuse of discretion may not be found merely because an
appellate court might have reached a different conclusion. Id.Indeed, as we explained in [Commonwealth v.J Walls, [592 Pa.
557, 926 A.2d 957 (2007),] there are significant policy reasons
underpinning this deferential standard of review:
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate review is
that the sentencing court is "in the best position to
determine the proper penalty for a particular offense
based upon an evaluation of the individual
circumstances before it." Simply stated, the sentencing
court sentences flesh-and-blood defendants and the
nuances of sentencing decisions are difficult to gauge
from the cold transcript used upon appellate review.
Moreover, the sentencing court enjoys an institutional
advantage to appellate review, bringing to its decisions
an expertise, experience, and judgment that should not
34
be lightly disturbed. Even with the advent of sentencing
guidelines, the power of sentencing is a function to be
performed by the sentencing court. Thus, rather than
cabin the exercise of a sentencing court's discretion, the
guidelines merely inform the sentencing decision.
Id. at 565, 926 A.2d at 961-62 (citations and footnote
omitted).
j\11
~·
Petru, supra at 565, 32 A.3d at 236-37.
The sentencing court's decision must be accorded great weight
because it was in the best position to measure "the defendant's character,
defiance or indifference, and the overall effect and nature of the crime."
Commonwealth v. Marts,· 889 A.2d 608, 613 (Pa.Super. 2005) (citation
omitted). In addition, "the trial court is permitted to consider the
seriousness of the offense and its impact on the community." Id. at 615.
There is no requirement under the current Sentencing Code that a
sentencing court's imposition of sentence "must be the minimum possible
confinement". Walls, supra at 571, 926 A.2d at 965; accord
Commonwealth v. lvloury, 992 A.2d 162, 171 (Pa.Super. 2010). Indeed, the
Superior Court will also reverse a sentence that is too lenient as
unreasonable. See Commonwealth v. Daniel, 30 A.3d 494 (Pa.Super.
2011) (concluding sentencing court's failure to take into account the
extremely serious nature and circumstances of the offenses and the
defendant's failure to accept responsibility in fashioning a sentence that
was a downward departure from the guidelines was irrational and
unsound).
35
It is also long settled that Pennsylvania sentencing courts have
discretion pursuant to 42 Pa.C.S.A. § 9721 to impose sentences
consecutively or concurrently to others being imposed at the same time or
,,,. to sentences already imposed. Commonwealth v. Caldwell, 117 A.3d 763,
769 (Pa. Super. 2015) (en bane) (citing Commonwealth v. Mastromarino, 2
m A.3d 581, 587 (Pa.Super. 2010)); Commoruuealiti v. Treadway, 104 A.3d
597, 599 (Pa.Super. 2014) (citation omitted); Mouri], supra (citation
omitted). Moreover, "the imposition of consecutive rather than concurrent
sentences will present a substantial question in only 'the most extreme
circumstances, such as where the aggregate sentence is unduly harsh,
considering the nature of the crimes and the length of imprisonment."
Caldwell, supra (citation omitted); accord Mouru, supra (citing
Commoruuealth: v. Pass, 914 A.2d 442, 446-47 (Pa.Super. 2006)).
In Pass, supra, the appellant therein argued that it was unduly
harsh and excessive to run an aggregate sentence consecutively to
another unrelated sentence imposed earlier when "the same act used to
find him in violation of his probation and parole in [the current] four cases
was the same act used to find him in violation of [the previous] sentence."
The Superior Court panel concluded that the appellant failed to raise a
substantial question. Id. at 446.
In the case sub judice, Appellant presents a similar argument. First,
Appellant concedes, as he must, that the sentence imposed is well within
the sentencing guidelines. On the two (2) convictions for criminal
36
conspiracy to commit possession with intent to deliver, the undersigned
imposed a sentence of three (3) to six (6) years each, to run concurrent
with one another, and a consecutive term of ten (10) years' probation.v' In
addition, the court sentenced Appellant to a consecutive term of one (1) to
two (2) years' in prison and a five (5) year period of probation on the
I"·
m conviction for dealing in unlawful proceeds. Appellant received concurrent
terms for the remaining convictions except for the determination of guilty
without further penalty on the conviction for possession with intent to
deliver and the conviction for criminal use of a communication facility.
His exposure was far greater.
Appellant complains, however, that imposing this aggregate
sentence of four (4) to eight (8) years consecutive to his sentence imposed
by Judge Lieberman for the offenses he committed and pled guilty to in
Berks County was unduly harsh and excessive. Specifically, Appellant
asserts that the testimony of Trooper Martinez concerning the Berks
County narcotics sales constituted the determining factor in the
Montgomery County jury's convictions. Appellant is mistaken.
As discussed infra, Appellant was not charged with the Berks
County drug deliveries in this case. Rather, the charges he faced were,
inter alia, criminal conspiracy to commit possession with intent to deliver
21
Count 6 and Count 7 for criminal conspiracy as an ungraded felony carried an offense
gravity score of 11. With Appellant's prior record score of 0, the standard range of the
sentencing guidelines is thirty-six (36) to fifty-four (54) months. (Pennsylvania
Commission on Sentencing, §303.16 Basic Sentencing Matrix i11 Edition, 12/28/12).
Accordingly, the court imposed a sentence in the bottom of the standard range.
37
and corrupt organizations. The Commonwealth introduced Trooper
Martinez's testimony to show intent and knowledge that his actions in
Berks County were part of a conspiracy to distribute narcotics through a
common scheme, plan, or design. The court also made it clear on the
record that the charge of corrupt organizations, which required the
, ....,,.
en Commonwealth to prove two or more acts of racketeering, did not include
the offenses committed in Berks County as the acts of racketeering. At
sentencing, the undersigned stated on the record "the need to differentiate
the crimes committed in Berks County from Montgomery County" as the
reason for imposing an aggregate sentence that runs consecutive to the
Berks County sentence. The court acted within its discretion and
Appellant's final issue warrants no relief.
V. CONCLUSION
Based upon the foregoing analysis, this court respectfully requests
that the Superior Court affirm Appellant's judgment of sentence.
BY THE COURT``
-- ------;'~ ``
<, -~
THOMAS P. ROGERS, I
t~
Court Of Common Pleas
Montgomery County, Pennsylvania
38th Judicial District
Copies sent on 06/21/ 16 to:
By E-Mail:
Robert M. Falin, Deputy District Attorney,
38
{/;.
Montgomery County District Attorney's Office
Sean E. Cullen, Esquire, Counsel for Appellant, Alejandro Ruiz Cabrera
By First-Class Mail:
Alejandro Ruiz Cabrera, LV6231
SCI Houtzdale
209 Institution Dr.
l-": Houtzdale, PA 16651
(~}I
,.,,.
rn
39