Com. v. Delgado-Melendez, A., Sr.

J-S33009-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANGEL LUIS DELGADO-MELENDEZ, SR.,
Appellant No. 1073 MDA 2016
Appeal from the Judgment of Sentence Entered June 2, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0002664-2015
BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 16, 2017
Appellant, Angel Luis Delgado-Melendez, Sr., appeals from the
judgment of sentence of an aggregate term of 6 to 20 years’ incarceration,
imposed after a jury convicted him of possession with intent to deliver a
controlled substance (PWID) and other drug-related offenses. On appeal,
Appellant challenges the sufficiency and weight of the evidence to sustain his
convictions, as well as discretionary aspects of his sentence. After careful
review, we affirm.
The trial court summarized the facts of this case, as established at
Appellant’s May 2016 jury trial, as follows:
Appellant, [c]o-[defendant, Damaris Ramirez,]
[Appellant’s] sixteen year-old biological daughter (the
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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“Daughter”), and his eleven year-old son lived together at their
family home…. On the evening of April 23, 2015, the Daughter
was at the home with her younger brother. Twice, in the course
of that evening, Rocky, identified by the Daughter as [Ramirez’s]
brother, entered and exited the home. On both occasions,
Rocky went immediately into Appellant’s bedroom, closed the
door, produced sounds indicative of searching through
Appellant’s dresser [drawers], and then exited the house.
During his time at the home, Rocky would say very little to the
Daughter. Additionally, during his first visit, he locked
Appellant’s bedroom door and later left the room carrying
something in his fist.
After the intrusion, the Daughter decided that she needed
to secure the premises and seek assistance. Her first step was
to secure the premises and prevent Rocky from returning. Next,
she searched through Appellant’s [drawers] and “[after she]
moved the clothes to the side … [she] found a bag that was
moved, so … [she] opened the bag and … [she] pulled out two
bag things and a little thing of powder….” After uncovering the
substances, using her cellphone, she sent a picture of the
substances to her Aunt. Later, the Daughter had a discussion
with her Aunt about the material she discovered. Finally, after
speaking with [her] Aunt…, the Daughter went to City Hall,
reported the incident, and at some point returned home.
Subsequently, the City dispatched Officer Bradley McClure
to Appellant’s home to conduct a safety check of the premises,
at the Aunt’s bequest. Seeing the Officer, the Daughter came
outside to talk. On her own initiative, the Daughter informed the
Officer that there were drugs in the house. To corroborate her
allegation, the Daughter showed the Officer a video of the drugs.
After viewing this video, the Officer relayed the information to
Sergeant Rodger, who then called the VICE unit and Child and
Youth Services. A search warrant was applied for and was
received.
…
Acting on the search warrant, Investigator [Darren] Smith,
along with Sergeant Rodger,[1] Officer McClure, and another
____________________________________________
1
No first name was given for Sergeant Rodger.
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officer, entered Appellant’s house. The whole house was
searched, however items related to the drug trade were only
found in Appellant’s and [Ramirez’s] shared bedroom. In terms
of drugs, the police found [the] following quantities and types of
drugs packaged in bulk in Appellant’s and [Ramirez’s] dresser
[drawers]: [49.51 grams of cocaine, 15.47 grams of cocaine,
and 4.93 grams of Methamphetamine.]
Additionally, a spoon, a scale, resealable disposable bags,
and mail addressed to Appellant were found in the [drawers]
along with the drugs. The rest of the bedroom was also
searched and investigators uncovered a Pepsi box containing a
bottle of lidocaine and inositol.
Finally, at trial, Investigator Kevin Hasser, qualified as an
expert in the drug[] trade, testified that the material found in
Appellant’s bedroom was indicative of a drug dealer. First,
Hasser related to the [c]ourt that large bulk quantities of drugs
tend to indicate that the drugs were for sale, because by
repackaging and selling the drugs a significant profit could be
made. Second, Hasser related that the paraphernalia found was
indicative of a drug dealer trying to maximize his profit and
reputation. Specifically, the presence of a spoon for
apportioning the drugs, the baggies to create ready doses of the
drugs for resale, and the scale to weigh the drugs all indicated
that there was a concerted effort to effectively distribute the
drugs in the intended quantity, which would balance the
dealers[’] profitability and reputation concerns. Furthermore,
the presence of lidocaine and inositol were indicative of the
practice of cutting drugs. Hasser reasoned that due to the
numbing effect of these substances, a user can be fooled into
thinking he is consuming higher quality cocaine. It follows, that
a dealer attempting to maximize profitability would attempt to
stretch his product, while protecting the reputation of the quality
of his stock through this deception. Relying on all
aforementioned factors, under the totality of the circumstances,
Hasser was able to conclude that the house had function[ed] as
a stash house, an integral part of a drug deal operation.
Trial Court Opinion, 9/19/16, at 2-4 (citations to the record omitted).
Based on this evidence, a jury convicted Appellant of two counts each
of PWID, 35 Pa.C.S. § 780-113(a)(3); conspiracy to commit PWID, 18
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Pa.C.S. § 903(a) and 35 Pa.C.S. § 780-113(a)(3); possession of a controlled
substance, 35 Pa.C.S. § 780-113(a)(16); and conspiracy to commit
possession of a controlled substance, 18 Pa.C.S. § 903(a) and 35 Pa.C.S. §
780-113(a)(16). He was also convicted of single counts of possession of
drug paraphernalia, 35 Pa.C.S. § 780-113(a)(32), and conspiracy to commit
possession of drug paraphernalia, 18 Pa.C.S. § 903(a) and 35 Pa.C.S. § 780-
113(a)(32). On June 2, 2016, Appellant was sentenced to the aggregate
term of incarceration stated supra.
Appellant filed a post-sentence motion, which the court denied. He
then filed a timely notice of appeal, and he also timely complied with the
trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. Herein, Appellant presents two issues for our
review:
A. Whether the evidence was insufficient as a matter of law and
[whether the verdict was] against the weight of the evidence to
convict [] Appellant of [PWID] and related charges where there
was no evidence that [] Appellant participated in drug trafficking
or had knowledge that drug trafficking was occurring in his
house?
B. Whether the trial court abused its discretion by imposing a
sentence that was manifestly excessive and did not consider the
Sentencing Code criteria?
Appellant’s Brief at 5 (unnecessary capitalization omitted).
Within Appellant’s first issue, he presents two separate claims - a
challenge to the sufficiency of the evidence to sustain his convictions, and a
challenge to the weight of the evidence to support the jury’s verdict.
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The distinction between these two challenges is critical. A claim
challenging the sufficiency of the evidence, if granted, would
preclude retrial under the double jeopardy provisions of the Fifth
Amendment to the United States Constitution, and Article I,
Section 10 of the Pennsylvania Constitution, whereas a claim
challenging the weight of the evidence if granted would permit a
second trial.
A claim challenging the sufficiency of the evidence is a
question of law. 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. Where the evidence offered to
support the verdict is in contradiction to the physical facts, in
contravention to human experience and the laws of nature, then
the evidence is insufficient as a matter of law. When reviewing a
sufficiency claim the court is required to view the evidence in the
light most favorable to the verdict winner giving the prosecution
the benefit of all reasonable inferences to be drawn from the
evidence.
A motion for new trial on the grounds that the verdict is
contrary to the weight of the evidence, concedes that there is
sufficient evidence to sustain the verdict. Thus, the trial court is
under no obligation to view the evidence in the light most
favorable to the verdict winner. An allegation that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. A new trial should not be granted because of a
mere conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion. A trial judge
must do more than reassess the credibility of the witnesses and
allege that he would not have assented to the verdict if he were
a juror. Trial judges, in reviewing a claim that the verdict is
against the weight of the evidence do not sit as the thirteenth
juror. Rather, the role of the trial judge is to determine that
notwithstanding all the facts, certain facts are so clearly of
greater weight that to ignore them or to give them equal weight
with all the facts is to deny justice.
Commonwealth v. Widmer, 744 A.2d 745, 751–52 (Pa. 2000) (internal
citations, quotation marks, and footnote omitted).
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Here, Appellant proffers the same argument in support of both his
sufficiency and weight claims. Essentially, he maintains that the jury should
have believed the testimony of his daughter, who “did not testify that she
ever saw [Appellant] with any drugs” and she only “believed that he was a
drug addict.” Appellant’s Brief at 13. Appellant also argues that the
Commonwealth failed to prove that he knew about the drugs, or
constructively possessed them. Appellant stresses that there was no
evidence that he ever touched the drugs, or that he even knew they were in
the bedroom, as they “were not exposed items that were clearly visible.”
Id. at 13, 14.
Appellant’s arguments are unconvincing. The circumstantial evidence
was sufficient to demonstrate that he constructively possessed the drugs
and paraphernalia that were recovered from the bedroom that he shared
with Ramirez.
When contraband is not found on the defendant’s person, the
Commonwealth must establish “constructive possession,” that is,
the power to control the contraband and the intent to exercise
that control. Commonwealth v. Valette, 531 Pa. 384, 613
A.2d 548 (1992).
The fact that another person may also have control and access
does not eliminate the defendant’s constructive possession; two
actors may have joint control and equal access and thus both
may constructively possess the contraband. Commonwealth v.
Mudrick, 510 Pa. 305, 507 A.2d 1212 (1986). As with any other
element of a crime, constructive possession may be proven by
circumstantial evidence. Commonwealth v. Macolino, 503 Pa.
201, 469 A.2d 132 (1983). The requisite knowledge and intent
may be inferred from examination of the totality of the
circumstances. Commonwealth v. Thompson, 286 Pa. Super.
31, 428 A.2d 223 (1981). The fact that the contraband is located
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in an area usually accessible only to the defendant may lead to
an inference that he placed it there or knew of its presence. Id.Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa. Super. 1996).
In this case, the drugs were found in Appellant’s bedroom, a location
to which he had unfettered access. The drugs and paraphernalia were found
in a dresser drawer, and “[r]ight next to the drugs” was mail addressed to
Appellant. N.T. Trial at 174. Also in that drawer, officers found Appellant’s
voter registration card and a bank card with his name on it. Id. at 174,
177. The fact that the drugs and paraphernalia were not only located within
Appellant’s bedroom, but were also found in a drawer next to his mail, voter
registration card, and bank card, was strong circumstantial evidence that
Appellant constructively possessed the drugs and paraphernalia.
Additionally, Appellant’s daughter testified that Ramirez’s brother,
‘Rocky,’ had asked for Appellant both times he had come into the house and
rifled through Appellant’s dresser drawer. Id. at 95, 100. Appellant’s
daughter further testified that, in the “couple months” prior to this incident,
Rocky had come to their home “every two days,” and asked for Appellant.
Id. at 111. On those occasions, Rocky and Appellant would go into
Appellant’s bedroom and lock the door, and then Rocky would “leave real
quick[,]” spending only 10 to 15 minutes in the home at a time. Id. at 111-
12. This evidence further bolstered the inference that Appellant knew about,
and had constructive possession of, the drugs that were found in the drawer
in which Rocky was rummaging on the day of the incident.
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Thus, we conclude that the totality of the evidence was sufficient to
prove that Appellant constructively possessed the drugs and paraphernalia
found in his bedroom. Moreover, the jury was free to disbelieve any
evidence suggesting that Appellant did not sell drugs, such as his daughter’s
testimony that he was only a drug user. See Commonwealth v. Jones,
874 A.2d 108, 121 (Pa. Super. 2005) (“[T]he [finder] of fact while passing
upon the credibility of witnesses and the weight of the evidence produced is
free to believe all, part or none of the evidence.”) (citations omitted).
Finally, we ascertain no abuse of discretion in the trial court’s rejection of
Appellant’s weight-of-the-evidence claim, which is premised on the same
arguments as his challenge to the sufficiency of the evidence.
Next, Appellant attacks the discretionary aspects of his sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must
invoke this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (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.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006).
Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing hearing
or in a motion to modify the sentence imposed.
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Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super.
2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. Commonwealth v.
Paul, 925 A.2d 825, 828 (Pa. Super. 2007). A substantial
question exists “only when the appellant advances a colorable
argument that the sentencing judge’s actions were either: (1)
inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the
sentencing process.” Sierra, supra at 912–13.
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).
Here, Appellant has met the first three prerequisites for review of his
discretionary aspects of sentencing claims. Therefore, we must next assess
whether his claims constitute substantial questions for our review. In
Appellant’s Rule 2119(f) statement, he essentially contends that the court
failed to properly weigh mitigating factors when fashioning his sentence.
See Appellant’s Brief at 6 (stressing that Appellant “had no criminal record,
a strong work and family history” and did not commit a violent crime).
Appellant also argues that his sentence is excessive because the court
imposed “each term of imprisonment consecutive to each other.” Id. This
Court has previously concluded that, generally, neither of these arguments
constitutes a substantial question for our review. See Moury, 992 A.2d at
171 (“An allegation that the sentencing court failed to consider certain
mitigating factors generally does not necessarily raise a substantial
question.”) (citations omitted); id. (“Under 42 Pa.C.S.A. § 9721, the court
has discretion to impose sentences consecutively or concurrently and,
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ordinarily, a challenge to this exercise of discretion does not raise a
substantial question.”). However, more recently, we recognized that “an
excessive sentence claim - in conjunction with an assertion that the court
failed to consider mitigating factors - raises a substantial question.”
Commonwealth v. Swope, 123 A.3d 333, 339 (Pa. Super. 2015) (citation
omitted). In light of Swope, we will construe Appellant’s claims as
constituting a substantial question for our review.
Nevertheless, Appellant’s arguments are meritless. It is well-
established that,
[s]entencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest 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)
(citation omitted).
In the present case, Appellant avers that the court failed to consider
mitigating circumstances and that it imposed an excessive sentence, yet the
record demonstrates otherwise. Specifically, at the sentencing hearing, both
the Commonwealth and defense counsel stated that Appellant had a prior
record score of zero, and the court was obviously aware that Appellant’s
crimes were non-violent, as the sentencing judge also presided over his trial.
See N.T. Sentencing Hearing, 6/2/16, at 4, 7. Additionally, defense counsel
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stressed that Appellant “has worked for 20 years for the same person[,]”
and that that employer “trusted [Appellant] in his business.” Id. at 8. The
court also had the benefit of a presentence report, and it ultimately imposed
standard range sentences. Thus, we presume that Appellant’s sentence is
“appropriate under the Sentencing Code[,]” and that the “court was aware of
relevant information regarding [Appellant’s] character and weighed those
considerations along with mitigating statutory factors.” Moury, 992 A.2d at
171 (citations and internal quotation marks omitted). Finally, Appellant’s
bald assertion that the court’s imposition of consecutive sentences resulted
in an excessive term of incarceration is insufficient to demonstrate that the
court acted with “partiality, prejudice, bias or ill will,” or that it “arrived at a
manifestly unreasonable decision.” Shugars, 895 A.2d at 1275.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/16/2017
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