Com. v. Ortega, R.

J-S32021-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RANDY CEPEDES ORTEGA
Appellant No. 3227 EDA 2016
Appeal from the Judgment of Sentence Entered June 10, 2016
In the Court of Common Pleas of Carbon County
Criminal Division at No: CP-13-CR-0000249-2014
BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 18, 2017
Appellant Randy Cepedes Ortega appeals from the June 10, 2016
judgment of sentence entered in the Court of Common Pleas of Carbon
County (“trial court”), following his jury conviction for, inter alia, criminal
use of a communication facility.1 Upon review, we affirm.
The facts and procedural history of this case are not in dispute. As
recounted by the trial court:
[Appellant] was arrested by Weatherly Police and charged
with the following offenses: 1) criminal conspiracy (18 Pa.C.S.A.
§ 903); 2) possession with intent to . . . deliver [(“PWID”)] a
controlled substance (35 P.S. § 780-113(a)(30)); 3) criminal use
of a communication facility (18 Pa.C.S.A. § 7512(a)); 4) simple
possession of a controlled substance (35 P.S. § 780-113(a)(16))
and [5)] possession of drug paraphernalia (35 P.S. § 780-
113(a)(32)). These charges stemmed from an undercover
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. § 7512(a).
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investigation into illegal drug trafficking in the Weatherly area
and involved a co-defendant, Megan Rhoades [(“Rhoades”)], and
a confidential informant (“CI”).[FN1]
[FN1.] This [CI] was later identified at trial as
Christopher Miller.
A jury trial was held on March 2, 2015 and March 3, 2015.
At the trial, the [CI] testified that he contacted [Rhoades] for the
purpose of purchasing heroin from her. Rhoades and [Appellant]
appeared at the designated location where they met with the
[CI] for purposes of this transaction. Once together, the
Weatherly Police arrived and arrested Rhoades and [Appellant].
Sergeant Michael Bogart (“Bogart”) testified that he had
arrested the [CI] for driving under the influence and after
discussing what the [CI] could possibly do to “help himself,” the
[CI] agreed to arrange this drug deal. Bogart testified that he
arrived at the designated location, approached the vehicle, and
eventually arrested both [Appellant] and Rhoades. The heroin,
later determined to be fifty (50) bags with a weight of 1.2
grams, was pulled by Rhoades from her sweat pants and given
to Bogart.
Agent Charles Horvath (“Horvath”) testified as an expert in
narcotics investigations. Horvath testified that he reviewed the
evidence involved in this case and based upon the quantity of
heroin seized, the packaging, the money found, the location of
where it was seized from and the lack of “user” paraphernalia, it
was his expert opinion that these circumstances were indicative
of possession with intent to deliver drugs and not possession for
personal use. Horvath also testified on re-cross that it was not
uncommon for a female drug dealer to bring male protection to a
drug deal. He also testified that he never heard of a “middle
man” bringing protection.
Rhoades also testified for the Commonwealth.[FN2] She
testified that she was contacted by the [CI] to reach out to
[Appellant] for heroin, unbeknownst to her that this was going to
result in a “bust operation”[FN3] should it come to fruition.
Rhoades testified that she reached out to [Appellant] since the
[CI] himself was unsuccessful in doing so. She also testified that
she called [Appellant] about selling heroin and needed a “brick”
for a sale in Weatherly. She testified that she went to Hazelton
to pick up [Appellant] and travelled back to Weatherly. She also
testified that [Appellant] brought the heroin with him and the
only reason she was found with it in her pants is because when
the police began to surround their car, [Appellant] threw it at her
and told her to “hide it.” Rhoades claimed that she was only the
“middle man” and that [Appellant] was the dealer.
[FN2.] While Rhoades was also charged in this case,
she agreed to testify for the Commonwealth in
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exchange for a more favorable disposition of her
charges.
[FN3]. A “bust operation,” as this scenario was
described as by Horvath, is short of a full-blown drug
delivery insofar as the police intervene in the matter
before the drugs and money exchange hands. That
is what occurred here.
Appellant took the stand in his own defense. He testified
that he knows Rhoades from their time doing various drugs
together. On this occasion, [Appellant] testified that Rhoades
called him to accompany her to a location where she was to
deliver a quantity of heroin to another individual. In exchange
for doing so, Rhoades gave [Appellant] several bags of heroin
which [Appellant] admitted he snorted on the ride from Hazelton
to Weatherly. He also testified that when the police arrived and
arrested both of them, they also seized the empty packets
containing the heroin residue. [Appellant] also testified that at
no time was he a drug dealer and specifically not on this
occasion. [Appellant] did testify that while he was passenger in
Rhoades’ car, he was fully aware of what Rhoades intended to do
that day: deliver drugs to another person.
A verdict was rendered by the jury on March 3, 2015
finding [Appellant] guilty of criminal use of a communication
facility, simple possession, and possession of drug paraphernalia,
and not guilty of [PWID] and conspiracy to commit possession
with intent to deliver.
Trial Court Opinion, 6/10/16, at 1-5 (unnecessary capitalization omitted)
(footnotes renumbered and/or omitted) (sic). The trial court sentenced
Appellant to three years’ probation. Specifically, Appellant was sentenced to
three years’ probation for criminal use of a communication facility and a
concurrent term of one year of probation for both possession of a controlled
substance and possession of drug paraphernalia. Appellant timely appealed
to this Court. The trial court ordered Appellant to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. Appellant complied. In
response, the trial court issued a Pa.R.A.P. 1925(a) opinion.
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On appeal, Appellant raises a single issue for our review: “Whether
the evidence introduced at trial is insufficient to prove the offense of criminal
use of a communication device occurred as well as the fact that the jury’s
verdict was not inconsistent inasmuch as the predicate offenses required by
the statute were not found by the jury.” Appellant’s Brief at 7 (unnecessary
capitalization omitted). Put differently, Appellant argues that the evidence
was insufficient to sustain his conviction for criminal use of a communication
facility because the Commonwealth failed to prove beyond a reasonable
doubt that that a felony actually occurred. Id. at 15-16. In support of his
argument, Appellant points out that the jury here acquitted him of the felony
counts of conspiracy and PWID.
“A claim challenging the sufficiency of the evidence is a question of
law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
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.
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Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014),
appeal denied, 95 A.3d 275 (Pa. 2014).
Section 7512(a) of the Crimes Code provides in relevant part “[a]
person commits a felony of the third degree if that person uses a
communication facility to commit, cause or facilitate the commission or
the attempt thereof of any crime which constitutes a felony under this
title or under the act of April 14, 1972 (P.L. 233, No. 64), known as The
Controlled Substance, Drug, Device and Cosmetic Act.” 18 Pa.C.S.A. §
7512(a) (emphasis added) (footnote omitted). Thus, to sustain a conviction
under Section 7512, the Commonwealth must establish beyond a reasonable
doubt that
(1) Appellants knowingly and intentionally used a communication
facility; (2) Appellants knowingly, intentionally or recklessly
facilitated an underlying felony; and (3) the underlying
felony occurred. . . . Facilitation has been defined as “any use
of a communication facility that makes easier the commission of
the underlying felony.”
Commonwealth v. Moss, 852 A.2d 374, 382 (Pa. Super. 2004) (citations
omitted) (emphasis added). “If the underlying felony never occurs, then
Appellants have facilitated nothing and cannot be convicted under Section
7512(a).” Id.
As stated, Appellant here challenges only the occurrence of the
underlying felony element of Section 7512(a). In this regard, he argues
that, because the jury acquitted him of the felony charges of criminal
conspiracy and PWID, the Commonwealth could not establish the occurrence
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of an underlying felony to sustain a conviction for criminal use of a
communication facility. Essentially, Appellant advances the proposition that,
absent a felony conviction for an underlying offense, a defendant may not be
found guilty under Section 7512(a). His argument, however, is at variance
with Moss, where we explained that Section 7512(a) “does not require that
the defendant be the one to commit the underlying felony.” Moss, 852 A.2d
at 382. The Commonwealth needs to demonstrate only that an underlying
felony occurred, irrespective of who was responsible for it, or, more
importantly, whether it resulted in a felony conviction.
While Appellant’s argument focuses on his own conduct and his
acquittal of the underlying felony crimes of criminal conspiracy and PWID, he
ignores his facilitation of the felonious conduct of Rhoades, the other person
involved in the narcotics transaction sub judice. See generally
Commonwealth v. Rose, 960 A.2d 149, 157 (Pa. Super. 2008), appeal
denied, 980 A.2d 110 (Pa. 2009) (noting that the jury could consider any
felonious conduct in determining whether a felony occurred). Thus, as we
set forth above, under Section 7512(a), the Commonwealth must establish
only that a defendant “facilitated the commission . . . of any crime
which constitutes a felony.” 18 Pa.C.S.A. § 7512(a).
Here, based upon our review of the record, we agree with Appellant
that the jury did not find him guilty of the two felony charges, i.e.,
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conspiracy and PWID.2 We, however, disagree with his suggestion that the
acquittal of his felony charges must be construed to mean that no felony
occurred in this case. As the facts above bear out, Appellant used his cell
phone to facilitate Rhoades’ narcotics transaction with the CI, i.e., PWID,
the felonious conduct supporting Appellant’s conviction for criminal use of a
communication facility. The Commonwealth presented overwhelming
evidence that Appellant facilitated the transaction whereby Rhoades
intended to sell fifty bags of heroin to the CI. In particular, the
Commonwealth presented expert testimony to establish that the quantity of
heroin seized in this case was indicative of PWID. Moreover, the trial court
specifically found that the record supported “[Appellant] was fully aware of
what Rhoades intended to do that day: deliver drugs to another person.”
Trial Court Opinion, 6/10/16, at 5. Accordingly, based upon the evidence
presented at trial, viewed in a light most favorable to the Commonwealth,
we agree with the trial court that the Commonwealth proved the occurrence
of an underlying felony sufficient to establish beyond a reasonable doubt
Appellant’s conviction for criminal use of a communication facility.
Judgment of sentence affirmed.
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2
Appellant’s acquittal of conspiracy and PWID suggests that the jury found
his testimony credible to the extent he argued that he was not a drug
dealer, but only accompanied Rhoades to facilitate the narcotics transaction.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/18/2017
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