Com. v. Rivera-Rodriguez, A.

J-S01040-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AXEL RIVERA-RODRIGUEZ :
:
Appellant : No. 776 MDA 2021
Appeal from the Judgment of Sentence Entered June 3, 2021
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0000242-2020
BEFORE: BOWES, J., NICHOLS, J., and COLINS, J.
MEMORANDUM BY COLINS, J.: FILED: JUNE 7, 2022
Axel Rivera-Rodriguez appeals from the judgment of sentence imposed
following a jury trial in which he was found guilty of possession with intent to
deliver a controlled substance, unlawful possession of drug paraphernalia, and
tampering with or fabricating physical evidence.1 For these offenses, Rivera-
Rodriguez received an aggregate sentence of four to eight years of
incarceration. On appeal, Rivera-Rodriguez raises four issues, with two of
those claims appearing to fall under the auspice of ineffective assistance of
counsel. Given, inter alia, that this is a direct appeal from his judgment of
sentence, we find no merit to those two assertions. In addition, as to his
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 Retired Senior Judge assigned to the Superior Court.
1See 35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(32), and 18 Pa.C.S.A.
§ 4910(1), respectively
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remaining averments, we hold that Rivera-Rodriguez’s sufficiency and weight
of the evidence claims do not warrant relief. Therefore, we affirm.
As gleaned from the record, on one evening in December 2019, a police
officer and his partner, while on patrol in Harrisburg, Pennsylvania, observed
a pick-up truck intentionally cut off and block a car from proceeding any
further in the lane of travel that the car had been on. Thereafter, the car went
into reverse and sped away from the scene. The police officer, at this point,
activated his emergency lights and intended to execute a traffic stop on the
truck.
The officer followed the truck, by vehicle, for some length of time until,
on one block, the truck reached a dead-end at a fenced barricade. At that
point, the officer saw Rivera-Rodriguez exit the vehicle, walk in front of the
truck, and throw two bags over the adjacent barricade. Eventually, the officer
handcuffed Rivera-Rodriguez, but in that process, Rivera-Rodriguez held out
three one-hundred-dollar bills that were later determined to be fake.2
A third officer, who had been called for backup, retrieved the bags that
Rivera-Rodriguez had thrown over the fence. Those bags each contained ten
bundles of fentanyl,3 which amounted to two hundred individual bags of the
substance. Moreover, that officer located two additional bundles of fentanyl in
that vicinity.
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2 Rivera-Rodriguez stated, at the time of arrest, that the bills were not real.
3 At trial, the parties stipulated that the bundles, in fact, contained fentanyl.
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Rivera-Rodriguez’s vehicle did not contain anything illicit, nor did he
have any contraband or paraphernalia on his person concurrent with his
arrest.
At trial, both sides attempted to frame Rivera-Rodriguez’s drug use, with
Rivera-Rodriguez’s witness highlighting him testing positive for fentanyl four
times leading up to his arrest in this case. Conversely, the Commonwealth
presented testimony demonstrating that Rivera-Rodriguez tested positive for
marijuana six times and opiates once over a six-month period leading to his
arrest.
Expert testimony was adduced for the purposes of establishing that the
fentanyl recovered had been possessed with an intent to deliver. In summary,
the presence of counterfeit currency, the unquestionably large quantity of
drugs, and Rivera-Rodriguez’s lack of employment leading up to his arrest all
tended to corroborate that the fentanyl was for distribution rather than
personal consumption.
In his defense, Rivera-Rodriguez stated that he had the intention of
purchasing drugs. Rivera-Rodriguez claimed that brought the fake dollar bills
to demonstrate to the seller that he had the means to acquire those drugs.
During the interaction, he tried some of the product.
Rivera-Rodriguez also specified that he attempted to block the car to
get the police officer’s attention. He maneuvered his vehicle in this manner
because he believed that it would lead to an arrest for both him and the seller,
the ostensible driver of the car. Additionally, Rivera-Rodriguez conveyed that
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he feared for his life. However, more broadly, Rivera-Rodriguez denied selling
drugs.
Immediately prior to the start of jury deliberations, three jurors
happened to see Rivera-Rodriguez in handcuffs and ankle braces. The three
jurors were kept separated from the other jurors and did not have any
subsequent interaction with them. Instead, after Rivera-Rodriguez’s counsel
moved to strike the jurors in question, the three jurors were replaced with the
three alternate jurors. When asked whether Rivera-Rodriguez wanted any
explanation about this situation given to the remaining jury composition, his
counsel stated that the jury should just go to deliberations. No motion was
filed nor was any kind of relief sought in conjunction with this event.
Ultimately, Rivera-Rodriguez was found guilty of the aforementioned
criminal offenses. Several months later, he was sentenced to four to eight
months of incarceration. Rivera-Rodriguez filed a timely post-sentence
motion, which was denied. After that motion’s denial, he timely appealed to
this Court. As such, this matter is ripe for review.
On appeal, Rivera-Rodriguez presents four issues:
1. Did the trial court err in not granting a mistrial after members
of the jury observed him shackled?
2. Did the trial court err in allowing the testimony of a probation
officer when he testified that he was his supervision probation
officer?
3. Did the court err in accepting the jury’s verdict where the
Commonwealth failed to present sufficient evidence that he
intended to deliver the contraband?
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4. Did the court err in accepting the jury’s verdict which was
contrary to the evidence presented at trial?
See Appellant’s Brief, at 4.
In his first claim, Rivera-Rodriguez argues that “it was prejudicial for the
jurors to view him handcuffed and shackled prior to jury deliberations[.]” Id.,
at 12. To that point, “the trial court’s dismissal of said jurors without first
questioning them as to whether they spoke to any other jurors about what
they saw was reversible error.” Id.
While the jury members were being transported to deliberations in a
piecemeal fashion under Covid-19 protocols, three of the jurors observed
Rivera-Rodriguez in handcuffs and ankle braces. See N.T., 3/9/21, at 163.
After this situation was brought to the court’s attention, Rivera-Rodriguez’s
attorney made a motion to strike the three jurors, which resulted in them
being replaced by three alternates. See id., at 163-64. Those observing jurors
had, like the rest of the jury, been “separated out in groups and [had] not
begun deliberations” prior to them being excused. Id., at 164. When asked if
he wanted the court to say or do anything more than facilitate the substitution
of those jurors, Rivera-Rodriguez’s attorney stated: “[l]et them go to
deliberations, Your Honor.” Id.
To support his position, Rivera-Rodriguez relies on two cases from this
Court wherein, in at least one of the cases, we granted a new trial after the
jurors saw a defendant in handcuffs in the courtroom. See e.g.,
Commonwealth v. Cruz, 311 A.2d 691, 691-92 (Pa. Super. 1973)
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(describing the prejudice that could have been easily created in the jurors’
minds because of the restraints seen on the defendant). However, Cruz also
references Commonwealth v. Carter, 281 A.2d 75 (Pa. Super. 1971), which,
largely congruent with the facts of the present case, involved this Court
upholding “the action of the trial judge in dismissing two jurors who had
witnessed the appellant being placed in handcuffs, during a trial recess. The
trial judge determined that the dismissed jurors had not discussed the
observed event with the other jurors.” Cruz, 311 A.2d at 692 (discussing
Carter).
Despite the Commonwealth’s and trial court’s insistence that Rivera-
Rodriguez failed to raise this issue in a post-sentence motion, see Trial Court
Opinion, 7/19/21, at 11; Appellee’s Brief, at 4, the record reflects that he
motioned the court on this basis. See Rivera-Rodriguez’s Post-Sentence
Motion, dated 6/10/21, at 3 (unpaginated) (asserting, inter alia, that him
being observed by jurors “resulted in prejudice against him sufficient enough
to impact their ability to fairly decide the case on only the evidence presented
at trial[]”). However, more importantly, the record also clearly shows that
Rivera-Rodriguez failed to raise a timely objection to this issue at trial. See
Commonwealth v. Rodriguez, 174 A.3d 1130, 1145 (Pa. Super. 2017)
(“The absence of a contemporaneous objection below constitutes a waiver of
the claim on appeal.”) (citation omitted); see also Commonwealth v.
Montalvo, 956 A.2d 926, 936 (Pa. 2008) (highlighting “the general rule that,
in order to preserve a claim on appeal, a party must lodge a timely objection
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at trial[]”). Therefore, on this basis alone, we find waiver given the absence
of any objection concomitant to the proceedings.
Even further than a lack of objection, after a complete on-the-record
discussion, Rivera-Rodriguez’s counsel assented to the court’s ultimate action
in replacing the jurors with alternates. Moreover, when specifically asked
whether he wanted anything further to be done, his counsel conveyed that he
wanted the jurors to begin deliberations. See Trial Court Opinion, 7/19/21, at
10 (writing that Rivera-Rodriguez’s counsel made no motion for a mistrial nor
requested any cautionary instruction).
To the extent Rivera-Rodriguez frames his issue as one of ineffective
assistance, we emphasize the general rule that, absent an exception, such
claims are not ripe for direct appeals and are deferred for review under the
Post Conviction Relief Act, see 42 Pa.C.S.A. §§ 9541-9546. See
Commonwealth v. Holmes, 79 A.3d 562, 563 (Pa. 2013). Rivera-Rodriguez
has not argued the applicability of any recognized exception, so on that basis,
too, his claim fails.
In his second point of contention, Rivera-Rodriguez avers that the court
erred in permitting the testimony of Probation Officer Daniel Kinsinger. See
Appellant’s Brief, at 15. To Rivera-Rodriguez, “the intentional calling of a
probation officer to testify that he was [his] probation officer” warrants a
mistrial. Id., at 17. Implicitly, his probation officer’s testimony indicated that
Rivera-Rodriguez had been involved in prior criminal activity, which therefore
resulted in prejudice.
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As specified by Rivera-Rodriguez, Kinsinger answered “yes” when asked
whether he “supervise[d] an individual named Axel Rivera-Rodriguez[.]” N.T.,
3/9/21, at 120. Thereafter, Kinsinger stated that his supervision of Rivera-
Rodriguez, which entailed drug testing, began in June 2019. See id.
Rivera-Rodriguez’s claim was not asserted in his post-sentence motion,
nor was there any kind of contemporaneous objection to Kinsinger’s
testimony. Consequently, this issue, too, is waived. See Appellant’s Brief, at
15 n.1 (Rivera-Rodriguez recognizing that “trial counsel’s failure to object to
the testimony of [Kinsinger] may be an issue [germane to] collateral review”
presumably as an ineffective assistance of counsel claim).4
In his third question presented, Rivera-Rodriguez asks this Court
whether the evidence was sufficient to convict him of the offenses in which he
was found guilty. The standard of review utilized in sufficiency claims is well-
settled:
[O]ur standard of 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. Evidence will be
deemed sufficient to support the verdict when it establishes each
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4Even if we were to review his largely unsupported averment, we would affirm
based on the trial court’s conclusion that: (1) Kissinger did not testify he was
Rivera-Rodriguez’s “supervising probation officer”; (2) the word “probation”
was not used by any witness, counsel, or the court at trial; and (3) it was
equally as likely, if not more likely, for “supervise” or “supervision officer,”
which were words and phrases that had been used, to connote some sort of
drug program Rivera-Rodriguez had engaged in, given his admitted drug
abuse, rather than prior criminal activity. See Trial Court Opinion, 7/19/21,
at 12.
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material element of the crime charged and the commission thereof
by the accused, beyond a reasonable doubt. Nevertheless, the
Commonwealth need not establish guilt to a mathematical
certainty. [T]he facts and circumstances established by the
Commonwealth need not be absolutely incompatible with the
defendant's innocence. Any doubt about the defendant's guilt is to
be resolved by the fact finder unless the evidence is so weak and
inconclusive that, as a matter of law, no probability of fact can be
drawn from the combined circumstances.
Commonwealth v. Lynch, 242 A.3d 339, 352 (Pa. Super. 2020) (citation
omitted) (alterations in original). The Commonwealth is permitted to “sustain
its burden by means of wholly circumstantial evidence, and we must evaluate
the entire trial record and consider all evidence received against the
defendant.” Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super.
2013) (citation omitted).
Rivera-Rodriguez states, and we agree, that the offense of possession
with intent to deliver a controlled substance required the Commonwealth to
prove beyond a reasonable doubt that he had an actual intent to deliver that
substance. See Appellant’s Brief, at 18-19, quoting Commonwealth v.
Kirkland, 831 A.2d 607, 611 (Pa. Super. 2003). However, he notes that
intent can be inferred through an examination of the facts and circumstances
surrounding the case. Specifically, Rivera-Rodriguez identifies that a large
quantity of drugs can provide legally sufficient intent.
However, Rivera-Rodriguez claims that intent, here, was never
demonstrated beyond a reasonable doubt. Rivera-Rodriguez stresses that he
was an addict, had fake dollar bills on him at arrest (which could have been
used to snort fentanyl), seemingly had a high tolerance to drugs, which would
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have required “more and more just to get a high,” and he had been using
drugs “for nearly 20 years.” Appellant’s Brief, at 19. As such, the evidence
merely supported a finding “of personal use.” Id., at 20.
After reviewing the record, we see no reason to deviate from the court’s
conclusion:
[The expert used at trial] was very clear in his opinion that the
fentanyl in this case was possessed with the intent to deliver. He
supported his opinion with articulable factors[,] and the jury was
certainly reasonable in crediting his opinion given his vast
experience as an expert in the field of street level drug trafficking.
Coupled with the evidence of drug paraphernalia, the baggies and
packaging materials for the fentanyl, the evidence is sufficient to
sustain [the possession with intent to deliver conviction].
Trial Court Opinion, 7/19/21, at 8 (citations to the record omitted). Evaluating
the entirety of the evidence presented in a light most favorable to the
Commonwealth as the verdict winner, the jury was free to conclude in the way
that it did. When juxtaposed against the discrete facts surrounding Rivera-
Rodriguez’s arrest, the expert testimony employed by the Commonwealth
provided a salient basis for the jury to conclude that Rivera-Rodriguez acted
with the requite intent. Therein, it was clearly identified that, among other
things, a large quantity of drugs, such as the amount at issue in this case,
was consistent with an intent to deliver.
Accordingly, the Commonwealth established his intent to distribute
fentanyl. While, certainly, the jury was free to reach the opposite conclusion
based on what it observed, we cannot say, and Rivera-Rodriguez has not
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demonstrated, that the evidence was “so weak or inconclusive” as to compel
that opposite result. See Hopkins, 7 A.3d at 820 (stating that “[t]he trier of
fact bears the responsibility of assessing the credibility of the witnesses and
weighing the evidence presented. In doing so, the trier of fact is free to believe
all, part, or none of the evidence[]”) (citation omitted). As such, he is due no
relief on this issue.
In his final claim, Rivera-Rodriguez contends that the verdict rendered
in this case was against the weight of the evidence. Preliminarily, we note that
we are unable to ascertain whether Rivera-Rodriguez adequately preserved
this issue. A thorough review of his post-sentence motion contains no weight-
based claim.
Our rules of criminal procedure require a weight of the evidence
challenge to be preserved in a post-sentence motion, a written motion prior
to sentencing, or an oral motion that precedes sentencing. See Pa.R.Crim.P.
607(A)(1-3). Rivera-Rodriguez, in his brief, has not indicated where, precisely,
he has preserved this issue. Although the court and Commonwealth have not
objected to this apparent deficiency, this issue is waived if has not been
preserved. See id., cmt.; see also Commonwealth v. Cox, 231 A.3d 1011,
1018 (Pa. Super. 2020) (“An appellant’s failure to avail himself of any of the
prescribed methods for presenting a weight of the evidence issue to the trial
court constitutes a waiver of that claim.”) (citation omitted).
Even evaluating his weight of the evidence assertion on its merits, we
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find no salient reason to grant a new trial. Our standard of review in this
domain 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 witness. An appellate court cannot
substitute its judgment for that of the finder of fact. Thus, we may
only reverse the lower 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. Collins, 70 A.3d 1245, 1251 (Pa. Super. 2013) (citation
omitted). Importantly, we emphasize that a challenge to the weight of the
evidence is “[o]ne of the least assailable reasons for granting or denying a
new trial.” Thompson v. City of Philadelphia, 493 A.2d 669, 671 (Pa.
1985).
Rivera-Rodriguez’s argument is that the evidence adduced at trial
supported the idea that he was merely possessing the drugs for personal use
without any intent to sell. Rivera-Rodriguez bolsters this claim by stating that
he tested positive for fentanyl and/or opiates in the months leading up to his
arrest, he had been struggling with serious addiction for quite some time, and
that, in the specific events leading to his arrest and to support this drug habit,
he was looking to buy drugs and stole the drugs from the drug dealer. See
Appellant’s Brief, at 20-21.
The trial court’s opinion, in response, is particularly instructive:
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The circumstantial evidence overwhelmingly supports the
conclusion that [Rivera-Rodriguez] possessed the drugs in
question with the intent to deliver. The sheer quantity of drugs,
the value of those drugs, and the common practice of users selling
to support their habits, especially users such as [Rivera-
Rodriguez] who were not legitimately employed, bely [Rivera-
Rodriguez’s] claim that he intended to use all two hundred
seventeen … bags.
… [Rivera-Rodriguez] testified that, when he had the money
to afford it, he would use as much as four .. bundles a day. That
equals forty .. bags per day. However … [Rivera-Rodriguez]
reported [to another his] … use of twenty … bags per day.
Trial Court Opinion, 7/19/21, at 9 (citations to the record omitted). While,
again, the jury was free to reach the opposite conclusion that Rivera-
Rodriguez merely possessed the fentanyl for personal consumption, it
certainly does not “shock one’s sense of justice,” in accordance with the
testimony and facts that were presented, to reach the conclusion that it
ultimately decided upon. Stated differently, the quantity of fentanyl
attributable to him vastly exceeded his admitted daily usage and a conclusion
consistent with that, that he intended to distribute the contraband, does not
require any kind of extraordinary logical leap. Therefore, Rivera-Rodriguez,
having presented no compelling basis to grant a new trial on his weight-based
claim, is not entitled to relief.
As each of Rivera-Rodriguez’s four claims are unmeritorious, we are
constrained to affirm his judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/07/2022
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