Com. v. Cubero, J. ( 2022 )

J-A11012-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSE VANDERDYS CUBERO :
:
Appellant : No. 1672 EDA 2021
Appeal from the Judgment of Sentence October 25, 2019
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0003159-2018
BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY BOWES, J.: FILED MAY 10, 2022
Jose Vanderdys Cubero1 appeals nunc pro tunc from the judgment of
sentence of forty to eighty months of incarceration imposed after a jury
convicted him of drug-related offenses. We affirm.
Appellant’s convictions stem from his delivery of heroin to Corey
McDowell. As the trial court summarized:
Detective Gregory Huff testified that he was conducting
surveillance around the 500 block of Broadway in Bethlehem on
August 27, 2018. At approximately 11:20 a.m., Detective Huff
saw [Appellant] pacing back and forth outside his home at 537
Broadway while talking on a cellphone. Detective Huff then
observed [Appellant] and McDowell meet. The two men walked
down the street, and [Appellant] removed a small item from his
underwear and handed it to McDowell. McDowell placed the object
____________________________________________
1 Appellant is referred to in the trial court filings alternatively as Jose
Vangerdys, Jose Cubero-Vanderdys, Jose Vanderdys-Cubero, and Jose
Vanderdys Cubero. We use the caption appearing on Appellant’s notice of
appeal.
J-A11012-22
in the right coin pocket of his pants and walked away, while
[Appellant] returned to his home. Detective Huff continued
observing McDowell walk away until he was stopped by two
uniformed officers. The officers discovered a packet of heroin in
the right coin pocket of McDowell’s pants. After a search warrant
was obtained, heroin was also found in [Appellant]’s home. At
trial, [Appellant] admitted that on the date of his arrest he had
heroin in his home and that he had used some. Finally, Detective
Huff credibly testified that when [Appellant] was informed of the
charges being brought against him, [Appellant] stated that he
could not be charged with delivery because he had not accepted
any money from McDowell but, rather, had just handed him the
heroin that day.
....
McDowell pleaded guilty to receiving and possessing the packet of
heroin that was the basis for charging [Appellant] with delivery of
heroin in this case. . . . Despite his guilty plea and the oral
admissions he previously made to police, McDowell told the
Assistant District Attorney that he was reluctant to testify
truthfully against [Appellant] at trial. The Assistant District
Attorney informed the court that if McDowell denied his
involvement in the transaction, she would impeach him with
recordings of phone calls he made from the prison in which he
discussed lying at trial. The Commonwealth was also prepared to
call the affiant to further impeach McDowell if necessary. At the
suggestion of the defense, the Assistant District Attorney advised
McDowell as to the possible criminal implications of perjuring
himself prior to him taking the stand. Thereafter, neither party
raised an issue as to McDowell taking the stand.
During his testimony, McDowell attempted to invoke his Fifth
Amendment right against self-incrimination, which the court did
not permit as he had already pleaded guilty to and had been
sentenced for possessing the heroin in question. Ultimately,
McDowell did testify that on the date in question he received a
packet of heroin from [Appellant]. McDowell also told the jury
that he was telling the truth.
Trial Court Opinion, 12/1/21, at 5-6, 3-5 (citations omitted).
-2-
J-A11012-22
A jury convicted Appellant of delivery of heroin, possession of a
controlled substance, and possession of drug paraphernalia, and on October
25, 2019, Appellant was sentenced as indicated above. Appellant’s timely
motion for reconsideration of sentence was denied by order of November 12,
2019. Appellant filed no direct appeal.
Appellant filed a timely Post Conviction Relief Act (“PCRA”) petition
which resulted in the reinstatement of his post-sentence and direct appeal
rights. Appellant thereafter filed a post-sentence motion challenging the
weight of the evidence supporting his conviction for delivery of heroin and the
length of his sentence. The trial court denied Appellant’s motion by order of
March 23, 2021. No immediate appeal was filed, but the trial court again
reinstated Appellant’s direct appeal rights upon a finding that Appellant had
not received notice of his right to appeal. See Order, 8/5/21. This appeal
timely followed, and both Appellant and the trial court complied with Pa.R.A.P.
1925.
Appellant presents two questions for our consideration:
I. Did the trial judge abuse his discretion by denying
[Appellant]’s post-trial motions challenging the weight of
the evidence to the charge of delivery of a controlled
substance?
II. Did the trial judge abuse his discretion by sentencing
[Appellant] to the high end of the standard range thereby
imposing a sentence that was inconsistent with the
sentencing code and contrary to the fundamental norms
underlying the sentencing process?
Appellant’s brief at 4 (cleaned up).
-3-
J-A11012-22
Appellant first argues that the trial court erred in denying his request
for a new trial based upon the weight of the evidence. The following legal
principles apply to our review:
Appellate review of a weight claim is a review of the [trial court’s]
exercise of discretion, not of the underlying question of whether
the verdict is against the weight of the evidence. Because the trial
judge has had the opportunity to hear and see the evidence
presented, an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial judge when
reviewing a trial court’s determination that the verdict is against
the weight of the evidence. One of the least assailable reasons
for granting or denying a new trial is the lower court’s conviction
that the verdict was or was not against the weight of the evidence
and that a new trial should be granted in the interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (cleaned up).
Hence, our task is to determine whether the trial court, in ruling on Appellant’s
weight challenge, “abused its discretion by reaching a manifestly
unreasonable judgment, misapplying the law, or basing its decision on
partiality, prejudice, bias, or ill-will.” Id. at 1056.
Appellant’s weight-of-the-evidence argument is as follows, in its
entirety:
In the case at bar, witness McDowell had no choice but to
testify to the alleged drug transaction with [Appellant] or else he
would be charged with perjury. This fact is uncontroverted in the
transcript. His prior statement to the police was not written or
recorded. If he denied making the statement, the Commonwealth
was left with no substantive evidence to convict him on the
offense. If he did not recall making the statement, his testimony
could have been impeached but not used as substantive evidence
that the crime was committed by [Appellant]. By coercing the
witness with threat of perjury, McDowell's hands were tied and he
was forced to bend to the will of the Commonwealth. To do
otherwise would have led to a perjury charge. As there was no
-4-
J-A11012-22
corroborating evidence of the drug deal, the only testimony to
garner the conviction was from a polluted and corrupted source.
Appellant’s brief at 13-14.
The trial court rejected Appellant’s arguments for several reasons. First,
it observes that McDowell “was a hostile witnesses who was a participant in
the crime and was reluctant to testify,” and that he “was not forced to say
anything specific, but, rather, was reminded of the penalties that all witnesses
face for lying under oath.” Trial Court Opinion, 12/1/21, at 5. Second,
contrary to Appellant’s contention, McDowell’s testimony was essential to the
conviction. Detective Huff’s testimony recounted above was itself sufficient to
establish that Appellant delivered heroin to McDowell. Specifically, Detective
Huff witnessed the hand-to-hand transaction and Appellant admitted to the
detective that Appellant had handed heroin with heroin. See id. at 5-6 (citing
N.T. Trial, 9/3/19, at 47-48, 72).
Appellant does not attack the trial court’s reasoning, but merely
suggests that this Court weigh the evidence differently. That is not our task.
Appellant has failed to articulate how the trial court “abused its discretion by
reaching a manifestly unreasonable judgment, misapplying the law, or basing
its decision on partiality, prejudice, bias, or ill-will,” Clay, supra at 1056.
Therefore, no relief is due.
In his second issue, Appellant seeks to challenge the discretionary
aspects of his sentence. Specifically, Appellant contends that the trial court
“imposed a purely punitive sentence” without considering any other standards
-5-
J-A11012-22
applicable to sentencing such as the history and characteristics of Appellant
and his rehabilitative needs. See Appellant’s brief at 11. The following legal
principles govern our consideration of his claim:
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the following
four factors:
(1) whether appellant has filed a timely notice of
appeal; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence; (3) whether appellant’s brief has a fatal
defect; and (4) whether there is a substantial question
that the sentence appealed from is not appropriate
under the Sentencing Code.
Commonwealth v. Lucky, 229 A.3d 657, 663-64 (Pa.Super. 2020) (internal
quotation marks omitted).
Appellant filed a timely nunc pro tunc notice of appeal and preserved
the issues in his nunc pro tunc post-sentence motion seeking reconsideration
of his sentence and brief in support thereof, as well as in his Pa.R.A.P. 2119(f).
statement of reasons relied upon for his challenge to the discretionary aspects
of his sentence.2 Further, we conclude that Appellant has presented a
____________________________________________
2 In addition to the complaints listed supra, Appellant in his Rule 2119(f)
statement also claims that the trial court failed to comply with its duty to offer
a contemporaneous statement of reasons for the sentence imposed. See
Appellant’s brief at 11. However, that claim was not raised at the sentencing
hearing or in Appellant’s post-sentence motion. As the issue does not
implicate the legality of Appellant’s sentence, see Commonwealth v.
Fowler, 930 A.2d 586, 593 (Pa.Super. 2007), it is waivable. Since Appellant
did not preserve it for our review, we do not consider it.
-6-
J-A11012-22
substantial question warranting our review. See, e.g., Commonwealth v.
Derrickson, 242 A.3d 667, 680 (Pa.Super. 2020) (finding substantial
question presented by claim that the sentence was based solely on the
seriousness of the crime without consideration of all relevant factors).
Accordingly, we proceed to review the merits of Appellant’s sentencing
challenge.
“When reviewing sentencing matters, this Court must accord the
sentencing court great weight as it is in the best position to view the
defendant’s character, displays of remorse, defiance or indifference, and the
overall effect and nature of the crime.” Commonwealth v. Edwards, 194
A.3d 625, 637 (Pa.Super. 2018) (cleaned up). “We cannot re-weigh the
sentencing factors and impose our judgment in the place of the sentencing
court.” Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009).
Hence, we review the sentencing court’s sentencing determination for an
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. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014).
While its discretion is broad, “the trial court’s discretion is not
unfettered.” Commonwealth v. Coulverson, 34 A.3d 135, 144 (Pa.Super.
2011). The sentence imposed “should call for confinement that is consistent
-7-
J-A11012-22
with the protection of the public, the gravity of the offense as it relates to the
impact on the life of the victim and on the community, and the rehabilitative
needs of the defendant.” 42 Pa.C.S. § 9721(b). “Where the sentencing court
had the benefit of a presentence investigation report (‘PSI’), we can assume
the sentencing court was aware of relevant information regarding the
defendant’s character and weighed those considerations along with mitigating
statutory factors.” Commonwealth v. Hill, 210 A.3d 1104, 1117 (Pa.Super.
2019) (cleaned up). “Further, where a sentence is within the standard range
of the guidelines, Pennsylvania law views the sentence as appropriate under
the Sentencing Code.” Id.Appellant’s complaint that his sentence is excessive is based largely
upon case law concerning the particular importance of a court’s express
consideration of mitigating factors when it chooses to sentence outside of the
recommended guideline ranges. See Appellant’s brief at 17-20. He ignores
the fact that, although the Commonwealth advocated for consecutive
sentences, the trial court gave Appellant concurrent sentences that are not
only within the guidelines, but within the standard range for a defendant with
as high a prior record score as Appellant. See N.T. Sentencing, 10/25/19, at
2-3.
-8-
J-A11012-22
Additionally, the court had the benefit of a PSI report. See N.T. Trial,
9/4/19, at 90 (ordering a partial presentence investigation report).3 Appellant
opted not to exercise his right to allocution at the sentencing hearing or
otherwise present any additional mitigating evidence. Indeed, given that
Appellant was already facing an additional two to three years for violating his
parole by committing these crimes, his only request at sentencing was for the
concurrent sentencing scheme that he ended up receiving. See N.T.
Sentencing, 10/25/19, at 3.
Stated plainly, Appellant has failed to present us with any preserved
claim that suggests that the trial court’s decision to give him a volume
discount for his distinct drug offenses by imposing concurrent sentences within
the standard range, for crimes committed while Appellant was on parole from
another offense, was manifestly reasonable or based upon “partiality,
prejudice, bias or ill will.” Antidormi, supra at 760 . Therefore, we do not
disturb the trial court’s exercise of its sentencing discretion.
____________________________________________
3 The trial court indicated that it required only Appellant’s “prior criminal
history and the correct guidelines for the case if neither side is asking for a
full pre-sentence investigation report.” N.T. Trial, 9/4/19, at 90. Appellant’s
counsel responded, “That’s fine, judge.” Id. at 91. Therefore, while the
Commonwealth suggests that Appellant’s claim regarding the lack of a full PSI
has merit, see Commonwealth’s brief at 10, we disagree. Appellant waived
the claim of error when he not only failed to object, but expressly agreed to
the truncated investigation. Cf. Commonwealth v. Tejada, 161 A.3d 313,
321 (Pa.Super. 2017) (vacating the sentence and remanding for resentencing
where, “[f]ollowing Appellant's objection to the lack of a PSI report, the court
immediately imposed sentence with no further discussion or input from the
parties”).
-9-
J-A11012-22
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/10/2022
- 10 -