Com. v. Lemus, F. ( 2018 )

J-A28035-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FRANCISCO JAVIER LEMUS, :
:
Appellant : No. 2720 EDA 2016
Appeal from the Judgment of Sentence July 27, 2016
In the Court of Common Pleas of Chester County
Criminal Division at No.: CP-15-CR-0002052-2014
BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED JANUARY 23, 2018
Appellant, Francisco Javier Lemus, appeals from the Judgment of
Sentence entered by the Chester County Court of Common Pleas following
his convictions after a jury trial of, inter alia, numerous counts of Possession
of a Controlled Substance With Intent to Deliver (“PWID”)1 and related
offenses. After careful review, we affirm.
The trial court summarized some of the facts as follows:
On July 9, 2014, the Commonwealth charged Appellant with
2,443 violations of the Controlled Substance, Drug, Devise and
Cosmetic Act and other crimes. Evidence at Appellant’s six-day
trial established that he was an active and crucial participant in a
Chester County cocaine trafficking organization run by his father.
Appellant, along with other family members, bought and sold
cocaine in 2013 and 2014, with Appellant acting as the
organization’s chief operating officer when his father returned to
Mexico. On April 18, 2016, a jury found him guilty of 51 counts
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1 35 P.S. § 780-113(a)(30).
J-A28035-17
of possession with intent to deliver cocaine, 49 counts of criminal
use of a communication facility, 3 counts of criminal solicitation,
and one count each of possession of drug paraphernalia, criminal
conspiracy, corrupt organizations, and dealing in proceeds of
unlawful activities.
Trial Court Opinion, 3/23/17, at 1-2. On July 27, 2016, the trial court
sentenced Appellant to an aggregate term of 40 to 80 years’ incarceration.
On August 24, 2016, Appellant filed a Notice of Appeal. Both Appellant
and the trial court complied with Pa.R.A.P. 1925.
Appellant presents six issues on appeal:
I. Whether the trial judge violated the Due Process Clause of the
state and federal Constitutions when he failed to conduct any
reasonable investigation into Appellant’s complaints of a
complete breakdown in the attorney client relationship including
the claim that the attorney did not allow him to participate in
jury selection?
II. Whether the trial judge violated the Due Process Clause of
the state and federal Constitution when he allowed detective
Jeremy Rubican, who was qualified as an expert in drug
trafficking and controlled substances, to testify in a way that
caused the jury to give his testimony a degree of reliability it did
not deserve and abdicate its responsibility to make independent
determinations of fact and instead, rely on his opinion to a
“reasonable professional certainty” that the combination of
words and actions of Appellant were consistent with drug
trafficking?
III. Whether the trial judge violated the Due Process Clause of
the state and federal Constitution when he admitted a picture of
Appellant’s .380 firearm which was legally possessed and had
absolutely no relationship to the crimes charged in the
indictment?
IV. Whether the trial judge violated the state Constitution and
rule 600 when he denied bail on the theory that no combination
of conditions other than imprisonment would reasonabl[y] assure
the safety of the community where Appellant’s crimes involved
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distribution of ounce quantities of cocaine without violence and
there was no reasonable basis to reject the request for nominal
bail?
V. Whether the 40-80 sentence imposed is multiplicitous and
violates state and federal case law including but not limited to
Apprendi and Alleyne where the sentencing guidelines link the
recommended sentence to the weight [of] the drugs distributed?
VI. Whether the sentence imposed is excessive in violation of the
fundamental norms underlying the sentencing process?
Appellant’s Brief at 2-3 (capitalization omitted).
Issue 1: Appellant’s Dissatisfaction with Court-Appointed Counsel
In his first issue, Appellant claims that the trial court erred in failing to
inquire about Appellant’s complaints about his court-appointed counsel and
in failing to appoint new court-appointed counsel based on Appellant’s
complaints. Appellant’s Brief at 8-12. Appellant avers that “[t]he [c]ourt’s
response was to blow him off.” Id. at 9.
Pa.R.Crim.P 122(C) provides that “[a] motion for change of counsel by
a defendant for whom counsel has been appointed shall not be granted
except for substantial reasons.” Pa.R.Crim.P. 122(C). “To satisfy this
standard, a defendant must demonstrate he has an irreconcilable difference
with counsel that precludes counsel from representing him.”
Commonwealth v. Wright, 961 A.2d 119, 134 (Pa. 2008). “The decision
whether to appoint new counsel lies within the trial court’s sound discretion.”
Id.
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The Honorable James P. MacElree II, sitting as the trial court, has
authored a comprehensive, thorough, and well-reasoned Opinion, citing the
record and relevant case law in addressing Appellant’s claim. See Trial
Court Opinion, 3/23/17, at 7-8 (describing its efforts to question “Appellant
and counsel about the nature of any conflict” and to resolve any issues, and
concluding that Appellant never followed its instructions to file a formal
motion for change of counsel explaining any unresolved issues and that
Appellant never demonstrated “an irreconcilable difference with counsel” as
required, including during his belated remarks during jury selection). After a
careful review of the parties’ arguments and the record, we discern no abuse
of discretion or error of law. We affirm on the basis of the trial court’s March
23, 2017 Opinion.
Issue 2: Propriety of Expert Testimony
In his second issue, Appellant challenges a detective’s expert
testimony at trial regarding intercepted cell phone conversations, text
messages, surveillance activity, and the translation of coded language
used in the drug trafficking world. Appellant’s Brief at 12-18. Appellant
contends that the detective, in testifying that he held his expert opinions
to a “reasonable degree of professional certainty[,]” invaded the province
of the jury and that his opinions were improper. Appellant’s Brief at 15,
18.
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The “[a]dmission of evidence is within the sound discretion of the
trial court and will be reversed only upon a showing that the trial court
clearly abused its discretion.” Commonwealth v. Tyson, 119 A.3d 353,
357 (Pa. Super. 2015) (citation and quotation omitted). “Accordingly, a
ruling admitting evidence will not be disturbed on appeal unless that
ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or
ill-will, or such lack of support to be clearly erroneous.” Commonwealth
v. Huggins, 68 A.3d 962, 966 (Pa. Super. 2013) (citations and internal
quotations omitted).
With regard to the admission of expert witness testimony,
Pennsylvania Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge is beyond that possessed by the average
layperson;
(b) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; and
(c) the expert’s methodology is generally accepted in the
relevant field.
Pa.R.E. 702.
We have previously held that the “standard for qualifying an expert is
a liberal one: the witness need only have a reasonable pretension to
specialized knowledge on a subject for which expert testimony is
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admissible.” Commonwealth v. Kinard, 95 A.3d 279, 288 (Pa. Super.
2014) (en banc) (citation omitted). Further, “[t]he witness’s expertise may
be based on practical, occupational, or other experimental training; it need
not have been gained through academic training alone.” Id. The Comment
to Rule 702 specifically states that “an expert’s opinion must be expressed
with reasonable certainty.” Comment to Pa.R.E. 702.
This Court has previously upheld the admission of expert testimony
regarding coded language. See, e.g., Kinard, supra at 288-89 (permitting
expert testimony to clarify meaning and intent of oblique and coded
language used in drug context); Commonwealth v. Powell, 171 A.3d 294,
307 (Pa. Super. 2017) (upholding admission of expert testimony regarding
“coded language associated with street culture.”).
Appellant’s contention with respect to the language the expert
repeated at trial (“reasonable degree of professional certainty”) lacks merit.
Such familiar language about the degree of the expert’s professional
certainty is required in expert opinion testimony. See Pa.R.E. 702. In fact,
the comment to Rule 702 specifically states that “Pa.R.E. 702 does not
change the requirement that an expert’s opinion must be expressed with
reasonable certainty.” Comment to Pa.R.E. 702.2 After careful review, we
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2 Moreover, we note that the trial court provided jury instructions regarding
the expert’s testimony, which explained the jury’s role in determining the
(Footnote Continued Next Page)
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conclude the trial court did not abuse its discretion in admitting this expert
testimony regarding coded language.
Issue 3: Photograph of Appellant’s Firearm
In his third issue, Appellant summarily claims that the trial court erred in
admitting photographs of a legally-owned .380 firearm in his truck because
they were irrelevant, unfairly prejudicial, and inflammatory. Appellant’s
Brief at 19.
Appellant has not developed this claim sufficiently so as to enable this
Court to provide meaningful review. We will not develop Appellant’s issue
for him. Accordingly, this challenge is waived. See Pa.R.A.P. 2119 (setting
forth briefing requirements); Commonwealth v. McDermitt, 66 A.3d 810,
814 (Pa. Super. 2013) (“It is a well settled principle of appellate
jurisprudence that undeveloped claims are waived and unreviewable on
appeal.” (citation omitted)); Commonwealth v. Williams, 732 A.2d 1167,
1175 (Pa. 1999) (recognizing “the unavailability of relief based upon
undeveloped claims for which insufficient arguments are presented on
appeal”).
Even if the claim were not waived, we would conclude it is without
merit based on the trial court’ analysis. See Trial Court Opinion at 10-11
(concluding that the photographs were not inflammatory, “were relevant to
(Footnote Continued) _______________________
weight and credibility of the expert testimony. N.T. Trial, 4/18/16 (Closing
Arguments and Jury Instructions), at 81-83.
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the Commonwealth’s theory that the drugs seized from the residence during
the execution of the search warrant were possessed with the intent to
deliver them, and were properly admitted.”).3 Accordingly, Appellant is not
entitled to relief.
Issue 4: Denial of Nominal Bail Pursuant to Pa.R.Crim.P. 600
In his fourth issue, Appellant belatedly challenges the trial court’s pre-
trial refusal to release him on nominal bail after 180 days in custody
pursuant to Pa.R.Crim.P. 600(B). Appellant’s Brief at 19-21. Appellant
claims this decision was erroneous on the merits, interfered with his ability
to hire private counsel before trial, and “[i]t was clear that the [c]ourt
denied bail as a way of forcing Appellant to enter a guilty plea.” Appellant’s
Brief at 21.
“Generally, a case will be dismissed if at any stage of the judicial
process it is rendered moot.” Commonwealth v. Sloan, 907 A.2d 460,
465 (Pa. 2006). A defendant is no longer in pre-trial detention where he is
now serving a sentence following conviction. Id. at 464-65. A Rule 600(B)
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3 See also Commonwealth v. Watley, 81 A.3d 108, 114-15 (Pa. Super.
2013) (observing that the determination of whether a person possesses a
drug with intent to deliver is based upon the totality of circumstances,
including whether police found firearms and ammunition in close proximity
to drugs); In re R.N., 951 A.2d 363, 367 (Pa. Super. 2008) (stating that
the presence of a firearm in close proximity to drugs is a relevant factor in
establishing PWID).
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claim regarding pre-trial release on nominal bail is “technically moot” once
the defendant is serving a sentence following conviction. Id.
Appellant did not immediately appeal the trial court’s pre-trial refusal
to release him on nominal bail after 180 days in custody pursuant to
Pa.R.Crim.P. 600(B). See Pa.R.A.P. 1762(b)(2) (“Release in Criminal
Matters”); Pa.R.A.P. 1516(a) (regarding petitions for judicial review of
governmental determinations, including bail decisions in criminal matters as
authorized in Pa.R.A.P. 1762). Appellant is no longer incarcerated in pre-
trial detention; he is now serving a sentence following conviction. Thus,
Appellant’s claim is moot. Sloan, supra at 468.
Issue 5: Apprendi/Alleyne Illegal Sentence Claim
In his fifth issue, Appellant claims that the trial court imposed an
illegal sentence because the jury did not make a finding regarding the date
of the charged crimes beyond a reasonable doubt. Appellant’s Brief at 22-
25. Relying on Apprendi v. New Jersey, 530 U.S. 466 (2000), Appellant
claims that the trial court impermissibly increased his maximum punishment
based on a fact that was not submitted to the jury, i.e., the date of each
crime. Appellant’s Brief at 25.4 As a result, Appellant sweepingly proclaims
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4 Insofar as Appellant’s argument implicates the sufficiency of the evidence
for failing to prove the date each crime was committed, or the adequacy of
the indictment and bill of particulars, such claims are waived because they
do not implicate the legality of Appellant’s sentence and he did not otherwise
raise these issues in his appellate Brief. See, e.g., Pa.R.A.P. 2119(a) (“The
(Footnote Continued Next Page)
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that “under controlling United States Supreme Court precedent, this
Honorable Court may sentence for one count of [PWID]; one count of
[C]riminal [C]onspiracy; one count of dealing in proceeds of unlawful
activity.” Appellant’s Brief at 26.
A challenge to the legality of a sentence is a question of law.
Commonwealth v. Wolfe, 106 A.3d 800, 802 (Pa. Super. 2014).
Therefore, this Court’s standard of review is de novo and the scope of review
is plenary. Id. “[C]laims pertaining to the legality of sentence are non-
waivable, may be leveled for the first time on appeal, and our jurisdiction
need not be invoked in a Pa.R.A.P. 2119(f) statement.” Commonwealth v.
Foster, 960 A.2d 160, 163 (Pa. Super. 2008) (citation omitted). “In fact,
such a claim is not even waived by a party’s failure to include it in a
Pa.R.A.P. 1925(b) statement.” Id. (citation omitted).
In Apprendi, the United States Supreme Court determined that
“[o]ther than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” Apprendi,
530 U.S. at 490. In Alleyne, the U.S. Supreme Court held that, other than
the fact of a prior conviction, any fact that increases the penalty for a crime
(Footnote Continued) _______________________
argument shall be divided into as many parts as there are questions to be
argued[.]”).
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beyond the prescribed statutory minimum must be submitted to a jury and
proved beyond a reasonable doubt. Alleyne, 133 S. Ct. at 2162.5
After careful review, we conclude that Apprendi and Alleyne do not
entitle Appellant to relief. The date of the offense does not change the
prescribed statutory minimum or maximum sentence. Additionally, there is
no indication in the certified record that the trial court imposed a mandatory
minimum sentence as part of Appellant’s Judgment of Sentence, which could
implicate Alleyne.6 Moreover, even a cursory review of the jury’s verdict
slip shows that the Commonwealth specified the exact dates of each drug
sale, the name of the buyer, and the trial exhibit related to each charge.
See Verdict Slip, dated 4/18/16. Accordingly, Appellant’s illegal sentencing
claims are without merit and he is not entitled to relief.
Issue 6: Discretionary Aspects of Sentence
In his sixth issue, Appellant avers that his aggregate sentence of 40 to
80 years’ incarceration is excessive based on the Federal Sentencing
Guidelines. Appellant’s Brief at 27-28. This implicates the discretionary
aspects of his sentence. See Commonwealth v. Lutes, 793 A.2d 949, 964
____________________________________________
5We observe that Appellant did not include any discussion of Alleyne in this
section of his argument; he only cited Alleyne in the question presented
and again in an unrelated claim challenging the discretionary aspects of his
sentence. See Appellant’s Brief at 21-26.
6 Appellant does not claim he was sentenced to an illegal mandatory
minimum sentence.
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(Pa. Super. 2002) (stating that an assertion that a sentence is manifestly
excessive challenges the discretionary aspects of sentencing).
Challenges to the discretionary aspects of sentence are not appealable
as of right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super.
2015). Rather, an appellant challenging the sentencing court’s discretion
must invoke this Court’s jurisdiction by satisfying a four-part test: “(1)
whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and
903; (2) whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3)
whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4)
whether there is a substantial question that the sentence appealed from is
not appropriate under the Sentencing Code, 42 Pa.C.S.[] § 9781(b).” Id.
(citation omitted).
Instantly, Appellant has not satisfied these requirements. Appellant
did not properly preserve this issue at sentencing or in a post-sentence
motion. In his Brief, Appellant relies on his “Petition for Re-Sentencing” to
support his claim that he properly preserved this claim in the lower court.
See Appellant’s Brief at 27. Our review of Appellant’s Petition shows that
Appellant never mentioned the Federal Sentencing Guidelines or his general
claim of excessiveness in any way. See R.R. at 587-88. Rather, Appellant
merely described his sentence and presented his Alleyne claim. R.R. at
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587-88. Thus, Appellant has failed to preserve this issue. See Leatherby,
supra at 83.
Moreover, we conclude that Appellant has not presented a substantial
question that his sentence is inappropriate under the Sentencing Code. The
determination of whether a particular issue raises a substantial question is to
be evaluated on a case-by-case basis. Commonwealth v. Bishop, 831
A.2d 656, 660 (Pa. Super. 2003). “In order to establish a substantial
question, the appellant must show actions by the sentencing court
inconsistent with the Sentencing Code or contrary to the fundamental norms
underlying the sentencing process.” Id. “Bald allegations of excessiveness,
unaccompanied by a plausible argument that the sentence imposed violated
a provision of the Sentencing Code or is contrary to the fundamental norms
underlying the sentencing scheme, are insufficient to raise a substantial
question.” Commonwealth v. Lee, 876 A.2d 408, 412 (Pa. Super. 2005).
In the instant case, Appellant has failed to raise a substantial question.
Appellant failed to include any discussion about whether this issue
constitutes a substantial question or otherwise develop this argument. See
Appellant’s Brief at 27. The substance of Appellant’s excessiveness claim,
presented entirely in the Pa.R.A.P. 2119(f) Statement, is that his sentence is
excessive when compared to the Federal Sentencing Guidelines. See
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Appellant’s Brief at 28.7 The Federal Sentencing Guidelines are wholly
inapplicable and irrelevant to the instant offenses prosecuted in state court
in Pennsylvania. See, e.g., 204 Pa. Code § 303.1 et seq. (describing the
sentencing guidelines applicable in Pennsylvania). It is clear from our
precedent that Appellant has failed to raise a substantial question as to his
sentence, and therefore failed to invoke the jurisdiction of this Court. See
Lee, supra at 412 (reiterating that a bald allegation of excessiveness does
not present a substantial question).
Because Appellant has failed to preserve this issue properly and has
failed to present a substantial question, this Court has no jurisdiction to
review Appellant’s challenge to the discretionary aspects of his sentence.
The parties are instructed to attach a copy of the trial court’s March
23, 2017 Opinion to all future filings.
Judgment of Sentence affirmed.
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7 Appellant also repeats his Alleyne claim. See Appellant’s Brief at 28.
Given our resolution of Appellant’s Alleyne claim above, we need not repeat
our analysis of that issue.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/23/18
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Circulated 12/29/2017 10:10 AM
COM�U)NWF:ALTII OF PF.l'iNSYLVANIA : IN THK COURT OF COM.\10N !'LEAS
CHE:STF.R COU:' 18 Pa.C.S.A. § 902
'35 P.S. §780-113(a)(32)
' JS Pa.C.S.A. § 903
2
In Commonwealth v. Jones, 899 A.2d 353 {Pa.Super. 2006). the Superior Court aifirrued
a trial court's dcn..iaJ of nominal bail to a defendant charged with rape, involuntary deviate sexual
intercourse and other crimes In denying bail, the trial co1U1 found that the defcndam was a
dan.ge-r to the conununiry based on the fac.t that he was a fugitive on other rape charges and had
an extensive prior record.
In the instant mauer Appellant had no prior record. He was. however, charged \\'ith over
two thousand criminal violations. including hundreds of counts of possession with intent lo
deliver cocaine. At the February 8> 2016, hearing held on this issue, Detective Jeromy Rubincan,
a full-urne narcotics investigator with the Chester Coumy District Auorneys office, testified
regarding seven "controlled buys," wherein a confidential informam purchased significant
amounts of cocaine directly from Appellant himselr. 1'.T. 218116. p. 18. Derecuvc Rubincan also
testified regarding threats that several potential witnesses bad received since Appellant's arrest.
N. T. 2/8116, Jl· 31.
After hearing all of the evidence. we determined tha; Appellant's continued incarceration
was necessary to reasonably ensure the safely of other persons and the community. Of particular
concern to the Court was the foct that no condition of bail would ensure th.at Appellant would not
continue to buy aud sell cocaine, thus posing a continuing threat to his community. Accordingly,
his motion was propcrJy denied.
' 18 Pa.C.S.A. § 91 l(b)
3
• I
Suppression of Wiretap Evidence
Appellant next asserts that we erred when we refused to suppress wiretap evidence,
claiming that wiretaps were unnecessary because "ordinary investigative methods" had already
been successful in this case.
Pursuant to Pennsylvania's Wiretapping and Electronic Surveillance Control Act, 18
Pa.C.S.A. §§ 5701-5782, the Commonwealth may apply for authorization to use a wiretap in the
investigation of a pending matter. 18 Pa.C.S.A. § 571 O(a). "A condition precedent to the
issuance of an order authorizing an intercept is a determination by a judge of the Superior Court
that 'normal investigative procedures with respect to such offense have been tried and have
failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ ... .'
18 Pa.C.SA. § 5710(a)(3)." Commonwealth. v. Doty, 498 A.2d 870, 880 (Pa.Super. 1985). In
making this showing, the Commonwealth is not required to establish that all other investigative
methods have been exhausted. Id. at 881.
At a hearing held on this issue on November 18, 2015, the Commonwealth reiterated to
this Court its reasons for requesting authorization for a wiretap in the Superior Court. The
reasons included its failure to place an undercover officer into the Lemus drug organization, its
prior surveillance and use of an informant in its investigation, and the limited efficacy of a search
7
18 Pa.C.S.A. § 511 l(a)(l)
4 1
warrant, as only a few of the organization's ruuhiple participants had thw far been identified.
SecN.T.11118/15,pp.26-27.
[n the instant mauer we found that the Commonwealth had suflicicntly established the
"ccndiuon precedent" required under section 57 J O(a)(3) of the Wiretap Act, and the suppression
of wiretap evidence was properly refused. We note here that the "Commonwealth is not required
10 forego additional investigation into an illegal drug conspiracy merely because ii may already
possess ... evidence sufflcient to permit prosecution of some of the conspirators."
Commonweallh 1,·. Dotv, 498 A.2d at 881.
Knoc:k and Announce
In h.is next issue, Appellant claims that the Court erred when ii "automaucajly" credited
the testimony of rbe police over civilian vvunesses at a suppression hearing held on his claim that
the Commonwealth violated the "knock and announce" rule when executing a search warrant at
his residence on May l, 20 I 4.
When executing a search warrant, Jaw enforcement officers are 10 give notice of their
identity, authority, and purpose ro lhe occupants of the premises prior to the officers' entry.
Pa.R.Cl'im.P. Rule 207(A). The police must then await a response for a reasonable period of time
after the above announcement Pa.R.Crim.P. Rule 207(8). The purpose of the rule is to prevent
injury to the police. and the occupants of the premises. to protect the occupant's privacy
expectations.. and 10 prevent property damage resulting from forced entry. C'ommonweailh v.
t:rcdcr.kl., 124 A.3d 748. 755 (Pa.Super. 2015).
5
At a hearing held on Appellant's motion to suppress evidence seized pursuant to this
search warrant, four witnesses testified. First to testify was Matthew Gordon, who on May I,
2014, was working as a detective in the Chester County District Attorney's Office, and was
assigned to assist in the execution of the search warrant at Appellant's residence. Detective
Gordon testified that prior to the police's entry into the residence he properly "knocked and
announced" himself and the police's purpose, and then waited approximately five seconds. After
Detective Gordon got no response to his knock, he repeated the "knock and announce" protocol
four or five more times prior to entering the residence. N.T. 4/8/16, pp. 16-17. Enrique Garcia,
a Chester County Deputy Sheriff, testified that he was at Appellant's residence to assist with the
execution of the search warrant and, prior to their entry into the home, heard Detective Gordon
knock and announce at least three, and perhaps as many as five times. N.T. 4/8/16, pp. 29-30.
Maria del Carmen Lemus, Appellant's sister, testified that she was in the home at the time of the
execution of the warrant and that she heard no knocking at all prior to the police's entry. N.T.
4/8/16, p. 36. The last witness to testify was Ryan Snyder, an inmate at the Chester County
prison, who shared a holding cell with the Appellant when both were at the Chester County
Justice Center on May I 0, 2014. Mr. Snyder testified that he overheard part of a conversation
between Appellant and Deputy Garcia, part of which was in Spanish, and that from his
"understanding" of the conversation the police did not knock before entering Appellant's home
on May 1, 2014. N.T. 4/8/16, pp. 40-42.
6
Credibility at a suppression hearing "is an important determination best resolved through
the court's personal observations." Commonwealth v. Camacho, 625 A.2d 1242, 1245
(Pa.Super. 1993). In the instant matter, we found credible the testimony of Matthew Gordon and
Enrique Garcia, and thus no violation of Rule 207. That fact that our credibility determinations
did not favor Appellant entitles him to no appellate relief.
Attorney/Client Relationship
In his next issue on appeal, Appellant claims that we failed to conduct any "reasonable
inquiry" into Appellant's claim of a breakdown in the attorney/client relationship, and his request
for a different court-appointed attorney. Although not specified in his 1925 Statement, we
assume that Appellant is referring to his comments on November 18, 2015, at the end of the
hearing on his omnibus pretrial motion. At that time Appellant informed the court that he was
dissatisfied with his counsel's representation, and that he desired different counsel. N.T.
11/18/15, p. 30. We questioned Appellant and counsel about the nature of any conflict, recessed
the matter for the two to confer, directed that counsel and Appellant discuss and attempt to
resolve any issues, and if necessary, thereafter file a motion for change of counsel. N.T.
11/18/15, pp. 31-35. No such motion was filed prior to trial. On day one of his trial, after the
jury had been sworn, Appellant again expressed his dissatisfaction with his attorney who had,
according to Appellant, failed to ensure the selection of a jury of his "peers." N.T. 4/11/16, pp.
59-61.
7 7
Pursuant to Pa.R.Crun.P. 122(AX2), counsel shall be appointed to all defendants unable
to afford counsel. Appellant's trial counsel, Mark Lieberman, Esquire, WM appointed 10
represent Appcllam on March 13. 2015. aRer Appellant's original counsel was pennitted to
withdraw. Pursuant 10 Pa. R.Crim.P. I 22(C),. a motion by a defendant for a change of court·
appointed counsel shall only be granted for "substantial reasons," "To sa1isry this standard, a
defendant must demonstrate that he has an irreconcilable difference with counsel that precluded
counsel from representing him ." Comm911weyhh v. Wright, 96t A.2d 119, 134 (Pa. 2008). As
Slated previously, no motion for change of counsel was tiled prior to trial, and while Appellant
expressed dissausfaction with counsel, and counsel acknowledged that the anomey/clicm
relationship was problematic, we were presented with no evidence that counsel could not
continue 10 zealously represent Appellant
We note here that part of Appc11an1's dissatisfaction with his anorncy appeared 10 stem
from his general disdain for court-appointed counsel. See: N.T. 4111116, pp. 60-61. However,
while an indigent defendant is entitled to free counsel. "he is not entitled 10 free counsel of his
own choosing." Comnwnwea/til v. Cook, 952 A.2d 594, 617 (Pa. 2008) (quotation omiucd).
Instamly, Appellant failed lo provide any specifics of "irreconcilable differences" with his
attorney that would have necessitated a change of counsel, and no relief is due on this claim.
,Expert \Vltrl(;§S Tcsumonv
Appellant DCXt claims that we erred when we permitted Commonwealth witness Jeremy
Rubincan, "to testify in a way Lhat invited the jury 10 abdicate its responsibility 10 ascertain and
y
8 (J
assess facts and make independent conclusions, and instead, defer to his expert opinion that a
combination of words and action of Appellant were consistent with drug trafficking."
Jeremy Rubincan, a detective in the drug and organized crime unit of the Chester County
District Attorney's office, testified at Appellant's trial. Detective Rubincan had over seventeen
years of law enforcement experience, extensive training and experience in narcotics
investigations and was qualified as an expert in the field of drug trafficking and controlled
substances. At trial Detective Rubincan offered expert testimony regarding whether the facts and
circumstances of certain transactions involving Appellant were consistent with narcotics
transactions. The facts and circumstances that formed the basis of Detective Rubincan's
opinions included his analysis of the contents of intercepted cell phone conversations, text
messages, and surveillance activity, and the translation of coded language, Admission of this
testimony was not error, for expert testimony is admissible to "interpret and explain the use of
code words and the meaning of certain language used in drug trafficking." Commonwealth v.
Riffert, 549 A.2d 566, 576 (Pa.Super. 1988) (quotation omitted).
In addition, the Court instructed the jury regarding the proper use of expert testimony
during the trial. The jury was instructed that it was to decide what weight to give the expert
testimony, and that it was entirely up to the jury to accept or reject the opinions offered. N.T.
4/13/16, pp. 106-107, 122-124. In that the testimony was properly admitted, and the Superior
Court has held that such testimony does not invade the province of the trier of fact,
9
Commonwealth r. Viwle, 664 A.2.d 999. 1001 (Pa.Super. 1995), Appellant is entitled to no relief
on this claim.
Pholugrnph of Firearm
Appellant next claims that we erred when we permitted the Ccmmonwcanh to show the
jury phoiographs of his .380 caliber firearm.
On day flve of Appellant's trial Chester County Detective Kenneth Beam testified.
Detective Beam participated as photographer in the execution of the search warrant at
Appellant's home on May I. 20L4. Several of the detective's photographs were shown co the
jury, including photographs of the interior ofa truck, frequently used by Appellant, parked at his
residence on May I, 2014. Photographed on the seat of the truck was Appellam's (legall)•
owned) handgun. Defense. counsel objected to the jury being shown these photographs. claiming
tho.t the picrures were irrelevant, prejudicial, and inflammatory. N.T. 4/l 5/f6, pp. 60·64.
The admissibility of photographs falls within the discretion of the trial court.
(:alJ.Jf@llWea/Jh v. Luwry, SS A.3d 743, 753 {Pa.Super. 2012). This issue often arises in accident
or homicide trials. where photographs of the victim's body or injuries are offered by the
Commonwealth. When deciding whether to admit a photograph. a court employs a two-step
analysis, iirst considering whether the photograph is "inflammerery." If so. the court then
considers whether the photograph's cvideruiary value outweighs the likdihood thal the
photograph will improperly inflame the minds and passions of the jury. Id. The term
"inflammatory" has been interpreted by the Superior Court to mean lhai "the photo is so
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gruesome it would tend to cloud the jury's objective assessment of the guilt or innocence of the
defendant." Commonwealth v. Funk, 29 A.3d 28, 33 (Pa.Super. 2011). The proffered
photographs clearly did not meet the definition of inflammatory, were relevant to the
Commonwealth's theory that the drugs seized from the residence during the execution of the
search warrant were possessed with the intent to deliver them, and were properly admitted.
Sentencing
Appellant's final two claims involve his sentence. Appellant asserts that the Court
improperly sentenced him based on the quantity of drugs sold, which quantity was not found by
the jury, and that the Court's sentence of 40 to 80 years "was imposed as a penalty for the right
to stand trial." We disagree.
Sentencing is a matter vested in the sound discretion of the sentencing judge, and a
sentence will not be disturbed absent a manifest abuse of that discretion. Commonwealth v.
Glass, 50 A.3d 720, 727 (Pa.Super. 2012). To establish a manifest abuse of discretion, an
appellant must show 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. Haynes, 125 A.3d 800, 808 (Pa.Super 2015). Such
deference is accorded because it is the sentencing court that is in the best position to review the.
defendant's character and the overall effect and nature of the crimes. Commonwealth v. Cook,
941 A.2d 7, 12 (Pa.Super, 2007). Further, a sentencing court is perceived to be in the "best
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position to determine the proper penahy for a particular offense based upon an evaluation of the
individual circumstances before it." Commonwealth v, Ward. 568 A.2d 1242. 1243 (Pa. 1990).
Jo the instant matter a jury found Appellant guilty or 107 separate criminal counts,
including 51 counts of possession wnh intent to deliver cocaine. Prior to imposing sentence, the
Court had the benefit of a prescntencc investigation report (]'SI). "When a sentencing court has
reviewed a presenrcncc investigation report, we presume that ihe court properly considered and
weighed all relevant factors in fashioning the defendant's sentence." CommomrcoJth Y. Baker,
n AJd 652, 663 (Pa.Super. 201l). In addition, prior to imposing sentence we considered the
factors set forth in 42 Pa.C.S.A. § 9721 (b), specifically "the protection of the public, the gravity
of the offense as it relates 10 the impact on the victim and the community, the defendant's
rehabiliiative needs, and the scurcncing guidelines." Commonweallh v. Feucht, 955 A2d 377,
383 {Pa.Super. 2008).
The individual circumstances leading to the sentence imposed included the fsct that
Appellant was second-in-cornmand of his family's drug trafficking operarion, and had. over a
significant period or time, provided his community with illegal drugs. His family's drug
trafficking operation had mulliple participants, and was involved in multiple transactions. \Vhile
we acknowledged Appellant's youth, and tin: fact that his father, as (he head of the enterprise
may be slighily more culpable than Appellant, see: N.T. 7127116, pp. 16-17, we nevertheless
believed then, and believe now. that a lengthy sentence was the only appropriate sentence in this
case.
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Appellant's aggregate sentence included no mandatory provision, and on each count
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Appellant was sentenced within the guideline range. However, the Court's did exercise its
discretion to have some of Appellant's sentences run consecutively. Commonwealth v Prisk, 13
A.3d 526, 533 (Pa.Super. 2011). Instantly, Appellant was convicted of over fifty counts of
possession with intent to deliver cocaine. In Commonwealth v. Mouzon, 828 A.2d 1126, 1130
(Pa.Super, 2003), the Superior Court affirmed a trial court's imposition of consecutive sentences,
noting that it had in the past "expressed concern against running sentences concurrently by way
of habit, lest criminals receive 'volume discounts' for their separate criminal acts." The Mouzon
court's words also apply here: "The significant sentence in this case is commensurate with the
significant amount of crime that [Appellant] committed." Id. Appellant's aggregate sentence
was consistent with the protection of the public, the gravity of Appellant's multiple offenses, and
Appellant's rehabilitative needs. He is entitled to no relief on his challenge to the sentence
imposed.
BY THE COURT:
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