DocketNumber： Com. v. Cabrera, A. No. 1071 EDA 2015
Filed Date： 4/3/2017
Status： Precedential
Modified Date： 4/3/2017
J-S13009-17 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. ALEJANDRO RUIZ CABRERA, Appellant No. 1071 EDA 2015 Appeal from the Judgment of Sentence Entered December 18, 2014 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0008513-2013 BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.* MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 03, 2017 Appellant, Alejandro Ruiz Cabrera, appeals from the judgment of sentence of an aggregate term of 4 to 8 years’ incarceration, followed by 10 years’ probation, imposed after a jury convicted him of corrupt organizations, 18 Pa.C.S. § 911(b)(1), dealing in unlawful proceeds, 18 Pa.C.S. § 5111(a)(1), criminal use of a communication facility, 18 Pa.C.S. § 7512(a), possession with intent to deliver a controlled substance (PWID), 35 P.S. § 780-113(a)(3), and criminal conspiracy to commit PWID, 18 Pa.C.S. § 903(a). We affirm. We need not summarize the complicated facts and procedural history of this case, as the Honorable Thomas P. Rogers of the Court of Common ____________________________________________ * Former Justice specially assigned to the Superior Court. J-S13009-17 Pleas of Montgomery County sets forth a lengthy and detailed discussion of those matters in his Pa.R.A.P. 1925(a) opinion. See Trial Court Opinion (TCO), 6/21/16, at 1-18. We only note that on appeal, Appellant raises the following three issues for our review: (1). Whether the [trial] court committed an error of law and/or abuse of discretion when it denied [Appellant’s] post[-]sentence motion for a new sentence because the sentence was unduly harsh and excessive? (2)[]. Whether the [trial] court committed an error of law and/or abuse of discretion when it denied [Appellant’s] motion at trial and in [his] post[-]sentence motion[] for a new trial where the verdict was against the weight and sufficiency of [the] evidence and the Commonwealth failed to present sufficient evidence for the trier of fact to find [Appellant] guilty of the crimes charged? [(3)]. Whether the [trial] court committed an error of law and/or abuse of discretion when it allowed [evidence of] prior unadjudicated acts, via testimony of Trooper Martinez, alleged to have occurred in Berks County where Appellant would have had to waive his Fifth Amendment rights and in violation of Due Process to defend himself in Montgomery County having not yet been adjudicated in Berks County? Appellant’s Brief at 5 (unnecessary capitalization omitted). We have reviewed the certified record, the briefs of the parties, and the applicable law. Additionally, we have reviewed Judge Rogers’ thorough and well-crafted opinion. We conclude that Judge Rogers accurately disposes of the issues presented by Appellant. We find no need to add anything further to Judge Rogers’ well-reasoned analysis, especially considering the minimally developed, and legally unsupported, arguments -2- J-S13009-17 that Appellant presents in his brief to this Court.1 Accordingly, we adopt Judge Rogers’ opinion as our own and affirm Appellant’s judgment of sentence on that basis. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 4/3/2017 ____________________________________________ 1 Indeed, we could conclude that Appellant has waived his first two issues for our review, based on his failure to provide any meaningful discussion in support of those claims. For instance, in regard to his challenge to the discretionary aspects of his sentence, Appellant only briefly summarizes certain statements made by him and the court at the sentencing proceeding, and then concedes that he “cannot specifically identify a manifest abuse of discretion” by the court in fashioning his term of incarceration. Appellant’s Brief at 11. Additionally, in his second issue challenging the sufficiency and weight of the evidence to support his convictions, Appellant provides only four sentences of discussion, cites no legal authority, and does not even state which specific offense(s), or element(s) thereof, that the Commonwealth failed to prove. Accordingly, we could deem Appellant’s first two issues abandoned or waived. See Commonwealth v. Hardy,918 A.2d 766
, 771 (Pa. Super. 2007) (directing that an appellant must “present
arguments that are sufficiently developed for our review” and support those
arguments “with pertinent discussion, … references to the record and with
citations to legal authorities[;]” where an appellant fails to meet these
requirements, thus “imped[ing] our ability to conduct meaningful appellate
review, we may dismiss the appeal entirely or find certain issues to be
waived”).
-3-
J-S13009-17
-4-
IN THE COURT OF COMMON PLEAS OF lVIONTGOMERY COUNTY,
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA : SUPERIOR COURT
: NO. 1071 EDA 2015
v.
}'·\.
: TRIAL COURT
IT}
ALEJANDRO RUIZ-CABRERA : NO. 8513-2013
ROGERS, J. JUNE 21, 2016
OPINION
I. INTRODUCTION
Alejandro Ruiz-Cabrera ("Appellant") has appealed to the Superior
Court of Pennsylvania ("Superior Court") from his judgment of sentence
following a three-day jury trial resulting in a verdict of guilty on one (1)
count of corrupt organizations,1 two (2) counts of possession with intent to
deliver a controlled. substance? two (2) counts of criminal conspiracy to
commit possession with intent to deliver a controlled substance.> one ( 1)
count of dealing in unlawful proceeds" and one (1) count of criminal use of
1
18 Pa.C.S.A. § 91 l(b)(l).
2
35 P.S. § 780-l 13(a)(30).
··- "<,
3
18 Pa.C.S.A. § 903(a).
4
18 Pa.C.S.A. § 511 l(a)(l).
a communication facility" for his role in a narcotics operation spanning
two counties.
1;:;,;
rn
The court sentenced Appellant to not less than three (3) years nor
1,)
more than six (6) years of incarceration on each of the two (2) convictions
for criminal conspiracy to commit possession with intent to deliver, to run
concurrent to one another, with a consecutive ten-year probationary
period; a concurrent term of not less than fifteen ( 15) months nor more
than thirty (30) months on the conviction for corrupt organizations, with a
ten-year consecutive term of probation to run concurrent to the criminal
conspiracy sentences; a concurrent term of not less than one ( 1) nor more
than two (2) years of incarceration on one of the convictions for possession
with intent to deliver a controlled substance with a five-year consecutive
term of probation, the sentence to run concurrent with the sentence on
corrupt organization, a consecutive term of one ( 1) to two (2) years'
incarceration with a five-year probationary period on the conviction for
dealing in unlawful proceeds, and a determination of guilt without further
penalty on the remaining count for possession with intent to deliver a
controlled substance and the count for criminal use of a communication
facility.
The undersigned granted the Commonwealth's motion to nol pros
counts 2, 3, 9, 10, 11, 13, 14, 15, 16, 17 and 18. In essence, the court
imposed an aggregate sentence of four (4) to eight (8) years' incarceration
5
18 Pa.C.S.A. § 75 l 2(a).
2
to be followed by ten (10) years of probation, all to run consecutive to the
((l
sentence imposed in Berks County in a corresponding case wherein
Appellant had pled guilty to other narcotics offenses. Appellant's appeal
,, merits no relief.
,,,. II. FACTS AND PROCEDURAL HISTORY
m
The relevant facts and procedural history underlying this appeal are
as follows. Detective Erick Echevarria of the Montgomery County
Detective Bureau, acting undercover in an ongomg narcotics
investigation," met co-defendant Jose DeJesus Montilla ("Montilla") on
December 17, 2012, in Mount Penn, Berks County, Pennsylvania, to
discuss the quantity of cocaine and met:hamphetamine Montilla would be
able to sell to Detective Echevarria. (Notes of Testimony ("N.T.") Trial
9/ 16/ 14, at 15-16). In particular, Detective Echevarria told Montilla that
he was interested in obtaining three (3) to four (4) pounds of crystal
methamphetamine a week if Montilla could handle that amount. (Id. at
16). Montilla told Detective Echevarria that he could indeed handle that
amount but that he would have to talk to his "brother" first. (Id. at 17).
On that date, Montilla sold Detective Echevarria an ounce (28 grams)
6
A number of law enforcement agencies were involved in the investigation of this drug
trafficking organization, including the Montgomery County District Attorney's Narcotics
Enforcement Team, the Berks County District Attorney's Narcotics Enforcement Team,
the Federal Drug Enforcement Administration (DEA), the United States Department of
Homeland Security, Immigration and Customs Enforcement and Removal Operations,
Exeter Township Police Department, Douglass Township Police Department and the
Pennsylvania State Police. (Notes of Testimony ("N.T.") Trial 9/16/14, at 39; N.T.
Sentencing 12/18/14, at 10-1 I; Affidavit of Probable Cause, filed 10/7 /13, at 5) .
..,
_)
of crystal methamphetamine for one thousand eight hundred dollars
($1,800.00). (Id.).
rn Detective Echevarria met with Montilla again on January 25, 2013
'
,.,. at Zerns Farmers Market in Montgomery County. (Id. at 23). Montilla
mentioned that he had eight (8) ounces of cocaine available for sale. (Id.
,,,.
tn at 25-26). Detective Echevarria told Montilla that he was concerned with
the quality of the cocaine and that what Detective Echevarria was really
interested in was obtaining crystal methamphetamine. (Id. at 25). As the
pair walked around Zerns Farmers Market, Montilla was on his cell phone
talking with someone. (Id. at 26). Montilla explained to Detective
Echevarria that Montilla had people there with him. (Id.). One of
Mantilla's concerns was that the undercover detective was with law
enforcement. (Id. at 22). As they rounded a corner at the market, the pair
came upon two Hispanic males. (Id. at 27). Detective Echevarria shook
the hand of both individuals and noted that one of them sat on a bench
talking on the phone to someone else during the encounter. (Id.).
Detective Echevarria recognized the other individual as co-defendant Juan
Carlos Morales-Soria («Morales-Soria"). (Id.). As Detective Echevarria
shook Morales-Soria's hand in leaving, Morales-Soria slipped Detective
Echevarria a small bag containing a sample of cocaine. (Id. at 28).
Detective Echevarria was instructed to contact Montilla to place an order.
(Id. at 30).
4
Later that same afternoon, Detective Echevarria contacted Montilla
on Mantilla's cell phone to place an order for two (2) ounces of cocaine.
(Id.). Montilla told Detective Echevarria that someone else would meet
him at Zerns Farmers Market. (Id. at 31). Morales-Soria subsequently
contacted Detective Echevarria and they agreed to meet at Zerns. (Id.).
1··'·
rn Morales-Soria asked Detective Echevarria for a description of his car and
told Detective Echevarria that he was in a black Ford Expedition. (Id.). As
Detective Echevarria sat in the parking lot at Zerns, Morales-Soria entered
Detective Echevarria's undercover vehicle and sat next to the Detective.
(Id. at 32). The pair agreed to a price of two thousand dollars ($2,000.00)
for the two (2) ounces of cocaine. (Id.). As Morales-Soria sat in the front
passenger seat, he took apart an energy drink can that he had brought
with him and removed the cocaine from a false compartment in the can.
(Id.). Morales-Soria told Detective Echevarria that they could get him
whatever quantity of cocaine or methamphetamine that he wanted, but to
go through Montilla to place an order. (Id. at 32, 35). Because of
Mantilla's concern that Detective Echevarria may be law enforcement, he
did not contact Montilla for several months. (Id. at 38).
In or around June of 2013, Pennsylvania State Police Trooper
Geraldo Martinez became actively involved in an ongoing investigation
concerning a narcotics organization known to be trafficking large
quantities of crystal methamphetamine in Reading, Berks County and the
surrounding areas. (Id. at 139). Specifically, on .June 10, 2013, Trooper
5
Martinez contacted Appellant on Appellant's primary cell phone," having
previously received information that Appellant was one of approximately
,a
rn four (4) main players in this organization. (Id. at 140). Trooper Martinez
-.
I\}
,.,.. then drove to the garage on the 400 block of North 9th Street in the city of
Reading where Appellant worked as a mechanic and asked to purchase
, .•.
m fourteen (14) grams of crystal methamphetamine. (Id. at 141). After
Appellant made a phone call in Spanish to his "boss" to obtain approval to
negotiate the price, eventually the pair came to an agreement that
Trooper Martinez would pay Nine Hundred Dollars ($900.00) for the
methamphetamine and Appellant would provide a sample of a higher
grade methamphetamine at no additional cost. (Id. at 142-45).
Appellant told Trooper Martinez that the methamphetamine was
located across the street and that he would need some time to retrieve it.
(Id. at 141). Trooper Martinez left the garage and received a call a few
minutes later from Appellant, who told the Trooper to meet him on the
900 block of Green Street in Reading. (Id. at 145-46). Trooper Martinez
spotted Appellant walking in an alleyway, at which point Appellant
entered and sat in Trooper Martinez's front passenger seat and they
exchanged the fourteen (14) grams of crystal methamphetamine for $900
in prerecorded U.S. currency. (Id. at 146). No money was exchanged for
the sample that Appellant provided at the same time. (Id.).
7
Both Trooper Martinez and Detective Echevarria called or sent text messages to
Appellant's primary cell phone number (484) 557-3652 to arrange narcotics buys. (N.T.
Trial 9/16/14, at 105, 140). Appellant also provided Trooper Martinez with a secondary
phone number of ( 484) 529-7983. (Id. at 155).
6
Trooper Martinez contacted Appellant on his cell phone agam on
l}J
July 10, 2013, to purchase more crystal methamphetamine. (Id. at 146-
147). Trooper Martinez again met Appellant at the garage in the 400 block
1·' of North 9th Street and placed an order for another fourteen (14) grams of
crystal methamphetamine. (Id. at 147-148). Trooper Martinez left the
rn area to await Appellant's call that he had the "tires" for the Trooper to
come and examine. (Id. at 149). When the Trooper arrived, Appellant
produced a small white plastic bag containing crystal methamphetamine
from a secret compartment inside of an Arizona Tea can. (Id. at 150).
Trooper Martinez paid Appellant Nine Hundred and Eighty Dollars
$980.00 in prerecorded U.S. currency for the crystal methamphetamine in
that plastic bag and left. (Id.).
On July 31, 2013, Trooper Martinez called Appellant on Appellant's
cell phone to place another order for crystal methamphetamine. (Id. at
150-51). Trooper Martinez went to the same garage to meet Appellant,
only this time Appellant told Trooper Martinez that he only had the higher
grade crystal methamphetamine available to sell to the Trooper, a sample
of which Appellant had already provided. (Id. at 151-52). The two men
agreed on a price. (Id.). Again, Appellant called Trooper Martinez to come
back to the garage to look at the "tires" when Appellant had the narcotics
available. Again, Appellant pulled a plastic bag containing crystal
methamphetamine out of a hidden compartment in an Arizona Tea can
and gave it to Trooper Martinez in exchange for One Thousand Forty
7
Dollars ($1,040.00) in prerecorded currency. (Id. at 152-153).8 When
en Trooper Martinez expressed his amusement over the compartment in the
Ui tea can, Appellant pointed to an Aqua Fina water bottle sitting atop a
toolbox which Appellant explained also had a concealed compartment
underneath the label. (Id. at 153-54).
After a break in communication of approximately seven (7) months,
Montgomery County Detective Echevarria contacted Montilla on August 6,
2013, to inquire about purchasing more crystal methamphetamine. (Id. at
38). Detective Echevarria and Montilla discussed a sale of at least one ( 1)
pound of crystal methamphetamine to take place on August 12, 2013. (Id.
at 39). However, on the morning of August 12, 2013, Detective Echevarria
received a phone call from Montilla, who said his boss now wanted to
provide just a sample first. (Id.).
The two men engaged in a back and forth discussion concerning the
location where someone would meet Detective Echevarria because the
Detective declined to move more than once. (Id. at 40). Detective
Echevarria then received a call from Morales-Soria, who also tried to get
Detective Echevarria to move to a third location approximately forty (40)
minutes away, but Detective Echevarria refused. (Id. at 41). Finally,
8
The Commonwealth charged Appellant separately in Berks County for the offenses
committed solely in Berks County. See Commonwealth v. Alejandro Ruiz-Cabrera, Berks
County Docket No. CP-06-CR-0000031-2014. Eventually, Appellant entered an open
guilty plea to three (3) counts of delivery of a controlled substance under 35 P.S. § 780-
113(a)(30). The Honorable Stephen B. Lieberman sentenced Appellant to incarceration for
an aggregate period of not less than fifteen ( 15) months nor more than ten ( 10) years. Id.
8
Montilla told Detective Echevarria to stay put, that someone would come
to him and Montilla gave Detective Echevarria Appellant's cell phone
number. (Id. at 42).
Detective Echevarria called Appellant's cell phone and Appellant told
Detective Echevarria that he was on his way and would meet the Detective
rn in the parking lot at the McDonald's in Gilbertsville, near Zerns Farmers
Market. (Id. at 43, 77). Appellant arrived in the parking lot as a front-seat
passenger in a black pickup truck. (Id. at 44; Trial Exhibits C-7, C-8).
Appellant exited the pickup truck and entered the front passenger side of
Detective Echevarria's undercover vehicle. (Id. at 46). The two men talked
about the confusion, and Appellant explained that Detective Echevarria
would continue to place orders through Montilla in the future but that
}\ppellant would deliver the narcotics. (Id. at 46) ... Appellant provided
Detective Echevarria samples of crystal methamphetamine in two (2)
plastic bags that Appellant removed from a secret compartment in the
bottom of a water bottle. (Id.). One of the bags contained a sample of the
higher grade, darker methamphetamine and the other bag contained a
sample of the clearer crystal methamphetamine. (Id. at 4 7). Appellant did
not ask for any money, and Detective Echevarria did not give Appellant
any money for the samples. (Id. at 48). After Appellant exited the vehicle,
Detective Echevarria called Montilla and told him that everything went
okay. (Id. at 49).
9
..
!'•
Detective Echevarria next telephoned Montilla on August 27, 2013,
to conclude the deal to purchase at least one ( 1) pound of
methamphetamine. Montilla explained that the price had risen from
1-·'· twenty-seven thousand dollars ($27 ,000.00) to thirty thousand dollars
($30,000.00) for the pound of higher grade methamphetamine. (Id. at 52-
53). Eventually they agreed that Detective Echevarria would also
purchase thirteen thousand dollars ($13 ,000.00) of the lower grade crystal
methamphetamine. (Id. at 53). They scheduled the exchange for August
31, 2013, at around 5:00 p.m. at the McDonald's in Gilbertsville. (Id. at
54, 77).
At approximately 2:50 p.m. on August 31, 2013, Corporal Pasquale
Leporace from the Berks County District Attorney's Office set up
surveillance on the 400 block of North 9th Street in Reading based on
information the District Attorney's office had about this organization. (Id.
at 59, 61). Corporal Leporace noticed two (2) individuals sitting inside of a
parked Dodge Charger. (Id. at 62). To get a better view and a possible
identification, Corporal Pasquale drove by the parked vehicle and
identified co-defendant Alder Hernandez-Solorio ("Hernandez-Solorio").
(Id. at 64). After Corporal Pasquale turned around and drove back, he saw
the two men from the Charger speaking with the driver of the same black
pickup truck that law enforcement had seen Appellant riding in as a
passenger to deliver the methamphetamine to Detective Echevarria on
August 12, 2013. (Id. at 65).
10
Detective Echevarria arrived at the McDonald's in Gilbertsville at
around 5:00 p.m. and let Montilla know that he had arrived. (Id. at 77).
Montilla directed him to move across the street to Zerns Farmers Market.
1-'-- (Id. at 77-78). Montilla informed Detective Echevarria that he would be in
a blue Kia. (Id. at 78).
Detective Michael Reynolds of the Montgomery County District
Attorney's Office was working that day as a surveillance officer to assist in
the investigation and help protect Detective Echevarria. (Id. at 67, 69). As
Detective Reynolds was entering the Zerns Farmers Market parking lot, he
observed a Dodge Charger occupied by two (2) males, later identified as
co-defendants Hernandez-Solorio and Eloy Solo_rio-Flores. (Id. at 70, 89).
Detective Reynolds confirmed with other law enforcement that this Dodge
· Charger was the same vehicle observed earlier in the afternoon up on the
400 block of North 9th Street in Reading. (Id. at 71). The Dodge Charger
eventually parked in front of the Kia and Detective Echevarria's
undercover vehicle. (Id. at 72-73).
After Detective Echevarria and supporting law enforcement officers
had moved their vehicles to the Zerns' parking lot, Detective Echevarria
approached the blue Kia Sorento SUV on foot. (Id. at 79). He noticed that
someone other than Montilla was seated in the Kia and later identified the
man as co-defendant Hector Cucuas ("Cucuas"). (Id.). After Cucuas told
Detective Echevarria that he was a friend of Montilla's, Detective
Echevarria asked to see the methamphetamine. (Id. at 80). Once
Il
Detective Echevarria confirmed that the box inside of a bag in the back
seat of the Kia contained narcotics, he gave a portion ($4,000.00) of the
'"·
I.r~.;
m agreed-upon price to Cucuas and explained that he had to return to his
,.
"
car to get the rest. (Id. at 80, 83-84, 87). Detective Echevarria then
returned to his undercover vehicle to provide some separation for other
01 law enforcement on the scene to make their arrests. (Id. at 88). The
officers arresting Cucuas recovered a loaded Glock 9-millimeter firearm
and three (3) cell phones in addition to just over one (1) pound (16.45
ounces) of the higher grade methamphetamine and just over half a pound
(8.12 ounces) of the lesser grade methamphetamine, along with the
$4,000.00 in currency from inside of the Kia Sorenta. (Id. at 89-90, 121,
123, 125, 130, 131-32; Trial Exhibits C-17, 30, 38, 40-41). The officers
who arrested Hernandez-Solorio and Solorio-Flores from the Dodge
Charger recovered three (3) cell phones from the center compartment,
dash slot and passenger floor as well as a cell phone from the right front
pants pocket of passenger Hernandez-Solorio. (Id. at 74, 93, 99; Trial
Exhibits C-19, 20, 21 and 22).
After obtaining search warrants for the phone records, Detective
Echevarria matched up phone calls and text messages from the call detail
records provided by the cell phone providers. (Id. at 102). Through
Detective Echevarria's investigation, law enforcement was able to
determine who the phones belonged to and link up the text messages and
phone calls concerning the August 31, 2013 delivery and bust. (Id. at
12
100-114; Trial Exhibit C-27). In that regard, the Commonwealth
1))
ascertained that Appellant had used two (2) phones to communicate with
other members of the organization as well as with Detective Echevarria.
(Id. at 105, 112-14). Of particular interest were calls and text messages to
and from Montilla to and from Appellant after their codefendants had not
1-··
Or returned from the drug deal on August 31 sr, the codefendants having
been arrested unbeknownst to Montilla and Appellant at the time. (Id.).
Appellant was arrested on or about October ·7, 2013. On December
19, 2013, the Commonwealth filed a notice of joinder of cases providing
Appellant notice that the Commonwealth intended to try Appellant's case
together with co-defendants Solaria-Flores, Hernandez-Solorio, Montilla,
Morales-Soria and Cucuas. (Commonwealth's Notice of Joinder of Cases
Pursuant to Pennsylvania Rule of Criminal Procedure 582, filed
12 / 19 / 13). This court scheduled the matter for a jury trial to commence
on September 15, 2014. The five co-defendants entered pleas of guilty
before the commencement of trial.
On September 12, 2014, the Commonwealth filed a motion in limine
to admit other bad acts under Pa.R.E. 404(b) seeking allowance to admit
evidence of Appellant's three (3) narcotics sales to undercover Trooper
Geraldo Martinez at the garage in the city of Reading, Berks County.
Specifically, the Commonwealth requested the court's permission to elicit
evidence of the three (3) prior narcotics transactions to prove intent as
well as a common scheme, plan and design and to negate the anticipated
13
defense that Appellant was unaware of his involvement in a larger
organization or conspiracy and unaware that he was delivering a sample
that would result in a larger transaction. (Commonwealth's Motion in
1--• Limine to Admit Other Bad Acts under Pa.R.E. 404(b), filed 9 / 12/ 14; N.T.
Trial9/15/14, at 12-13).
After swearing in the jury for the trial, the court heard oral
argument by Counsel outside the presence of the jury, on Monday
afternoon, September 15, 2013. (N.T. Trial 9/15/13, at 12-16). Following
argument and an opportunity to review the law, the undersigned granted
the Commonwealth's rnotion.? The undersigned also stated to Defense
Counsel that the court would not be opposed to giving a limited jury
instruction if Counsel wanted to prepare and submit one for approval.
(N.T. 9/ 15/ 14, at 40).
Prior to the start of testimony, Defense Counsel submitted a
proposed limited jury instruction to be read following the testimony of the
undercover State Trooper who had conducted the controlled buys from
Appellant in Reading, Berks County.t? (N.T. Trial 9/16/14, at 8-9, Trial
9
The court explained as follows:
It's being granted because it will afford the Commonwealth the opportunity
to show intent, common scheme, plan, and design. I think this case is made
stronger, frankly, by the fact that the Commonwealth charged under corrupt
organizations, because in the bill of information it referenced pattern, and
certainly that would go to the common scheme, plan, and design.
(N.T. 9/15/14, at 39-40).
'0 The court also explained to Counsel on the record the following:
14
Exhibit D-1). On September 16, 2014, the jury heard the testimony of
Detective Echevarria, Trooper Martinez, two of the surveillance officers, an
officer on the arrest team and Detective Michael Fedak. After Trooper
,·,
..:,
' Martinez testified, the undersigned read the following limiting instruction:
Members of the jury, you have just heard the testimony of
Trooper Geraldo Martinez. You heard testimony concerning
acts that were alleged to have occurred in Berks County,
Pennsylvania.
The defendant is not charged in this case with those alleged
deliveries, and they are not before you in this case to
determine guilt or innocence. You are free, as with any
witness, to accept or reject, in whole or in part, the testimony
presented to you. The Commonwealth admitted this evidence
from which it asks you to draw an inference that the
defendant had knowledge his acts were part of a conspiracy
through a common scheme, plan, or design. I instruct you
that if you accept this testimony, to only consider it for that
limited purpose.
(N.T. Trial 9/ 16/ 14, at 157).
Detective Fedak testified as an expert in drug trafficking and
distribution. (Id. at 163). Specifically, Detective Fedak testified, inter alia,
about the significance of providing samples of narcotics before the actual
exchange of money as it relates to Appellant's role in the organization, the
I read over the jury instructions for corrupt organizations last evening. The
jury instruction references that the Commonwealth must prove that the
defendant committed two or more crimes that are called acts of
racketeering, and I confirmed with the Commonwealth in the presence of
defense counsel that those two crimes that the Commonwealth -- more
[than] that the Conunonwealth intends to prove complied with that
requirement under corrupt organizations. Neither one of those or any of
those are the alleged offenses that I permitted to be referenced as part of the
404(b) prior bad acts.
(N .T. 9/ 16/14, at I 0).
15
structure of the organization, as well as the use of cell phones as a
necessity in this type of organization in order for the enterprise to be
t2i:
rn
<, successful. (Id. at 164-73).
Although Appellant did not testify at trial, he denied any knowledge
of a conspiracy or larger organization. His defense, for the most part,
in consisted of the fact that he did not receive any money in exchange for the
samples of narcotics he provided to the undercover detective in
Montgomery County, that he was not present for the larger transaction on
August 31, 2013, and that any drugs he may have sold, he did so to
support his own habit and not as part of a conspiracy.
The jury returned its verdict of guilty on all counts on Wednesday,
September 17, 2014. The court deferred sentencing until such time as the
Adult Probation Department could provide a PPI Evaluation and a Pre-
Sentence Investigation Report.
At sentencing on December 18, 2014, Appellant again denied any
involvement in a conspiracy or an organization. (N.T. Sentencing
12/18/14, at 14-15). As it pertained to Appellant's case in Berks County,
the undersigned explained his reasoning for imposing a consecutive
sentence as follows:
Before imposing sentence, I have considered the presentence
investigation report significantly as well as the PPI report. I
was the trial judge in this case, and I've had the opportunity
to review all the testimony as it was presented. I've also
certainly had the opportunity now to hear [Appellant} by way
of a statement in allocution as well as the well-made
arguments by counsel. So I will enter the following sentence:
16
* * * *
Significantly -- and I do want to say significantly -- this
sentence will not commence -- will run consecutive to the
sentence that's imposed in Berks County. It's important that
that be made part of the record. It furthers, in my judgment,
the need to differentiate the crimes committed in Berks
County from Montgomery County. It also demonstrates the
nature of this organization being a multi-county organization.
m (Id. at 15-1 7).
Counsel for Appellant and Appellant both filed post-sentence
motions. (Defendant's Counsel's Post-Sentence Motion, filed 12/ 19 / 14;
Defendant's pro se Motion for Post-Sentence Relief, filed 1/23/ 15). At
argument on Friday, March 20, 2015, Counsel argued both motions. (N.T.
Hearing on Defendant's Petition for Post-Sentence Relief 3/20/ 15). The
court denied Appellant's motions by order dated April 3, 2015. On April
17, 2015, Appellant filed a notice of appeal to the Superior Court. The
undersigned directed Appellant to file a concise statement of the errors
complained of on appeal ("Statement") by order dated April 20, 2015.
Appellant filed his Statement on May 7, 2015.
III. ISSUES
Appellant now raises the following issues on appeal:
1. [A-3) The Honorable Court committed an error of law
and/or abuse of discretion when it [sic) [Appellant's] motion at
trial and in Post Sentence Motions for a new trial where the
Commonwealth failed to present sufficient evidence for the
trier of fact to find [Appellant] guilty of the crimes charged.
2. [A-2] The Honorable Court committed an error of law
and/ or abuse of discretion when it denied [Appellant's] motion
17
fl);
::1
at trial and in Post Sentence Motions for a new trial where the
OJ verdict was against the weight and sufficiency of evidence.
3. (A-4] The Honorable Court committed an error of law
and/ or abuse of discretion when it allowed evidence of prior
bad acts committed in Berks County and subject to an open
case alleging evidence of sales of narcotics, common phone
numbers and other evidence that had not been adjudicated on
at the time of trial via the testimony of Trooper Martinez.
4. (A-5] The Honorable Court committed an error of law
and/ or abuse of discretion when it denied post-trial motions
for a new trial based on the evidence allowed under 404[bJ
introduced by Trooper Martinez.
5. (A-6] The Honorable Court committed an error of law
and/ or abuse of discretion when it allowed prior
unadjudicated acts, via testimony of Trooper Martinez, alleged
to have occurred in Berks County where [Appellant] would
have had to waive his 5th Amendment rights and in violation
of Due Process to defend himself in the Montgomery County
case with the case being open in Berks County,
6. [A-1] The Honorable Court committed an error of law
and/ or abuse of discretion when it denied [Appellant's] Post
Sentence Motion for a new Sentence because the sentence
was unduly harsh and excessive.
(Statement, filed May 7, 2015). 11
IV. DISCUSSION
In his first two issues on appeal, Appellant seeks either a judgment
of acquittal or a new trial, contending that the Commonwealth failed to
present sufficient evidence and that the verdict was against the weight of
the evidence. Appellant is mistaken.
The appellate scope and standard of review are long settled:
11
The court has reordered Appellant's issues for ease of disposition. Appellant's original
order of issues presented in his Statement is noted with an [A-*.].
18
.;
I···•
As a general matter, [appellate] 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." Commonwealth v. Widmer, 560 Pa. 308,744 A.2d 745
, 751 (2000). "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." Commonuseolth. v. Brewer,876 A.2d 1029
, 1032 (Pa.Super.2005). Nevertheless,
"the Commonwealth need not establish guilt to a
mathematical certainty." Id.; see also [ Aguado, 760 A.2d at
1185] ("[TJhe facts and circumstances established by the
Commonwealth need not be absolutely incompatible with the
defendant's innocence."). "[W)here no single bit of evidence
will by itself conclusively establish guilt, the verdict will be
sustained where the totality of the evidence supports the
finding of guilt." Commonwealth v. Thomas, 522 Pa. 256,561 A.2d 699
, 704 (1989). Thus, our Courts have recognized that proof of guilt may be inferred entirely from evidence of circumstances that attended the commission of the crime. See Breuier, 876 A.2d at 1032. "The fact that the evidence establishing a defendant's participation in a crime is circumstantial does not preclude a conviction where the evidence coupled with the reasonable inferences drawn therefrom overcomes the presumption of innocence." Id. (quoting Commonwealth v. Murphu,795 A.2d 1025
, 1038-39 (Pa.Super.2002)). Nevertheless, "[t]he requirement of the law [remains} that in order to warrant a conviction[,] the facts and circumstances proved must be of such character as to produce a moral certainty of the guilt of the accused beyond any reasonable doubt." Commonwealth v. Bybel,531 Pa. 68
,611 A.2d 188
, 189 ( 1992) (quoting Commonwealth v. New,354 Pa. 188
,47 A.2d 450
, 455 (1946)). Commonwealth v. Kinard,95 A.3d 279
, 291-92 (Pa.Super. 2014) (en bane) (quoting Commonwealth v. Barker,70 A.3d 849
, 854 (Pa.Super. 2013) (en bane)). Accord Commonwealth v. l\llcCurdy,943 A.2d 299
, 301-03 (Pa.Super. 2008) (finding evidence sufficient to support conviction for 19 corrupt organizations under 18 Pa.C.S.A. § 91 l(b)(3)). Finally, an appellate court will review the entire trial record, even evidence which is impermissibly introduced, when evaluating a sufficiency claim. Commonwealth v. Sanders,42 A.3d 325
, 329 n.1 (Pa.Super. 2012 (citing Commonwealth v. Reed,605 Pa. 431
, 436,990 A.2d 1158
, 1161 (2010)); accord Commonwealth v. Tejada,107 A.3d 788
, 793 (Pa.Super. 2015) (citation omitted). Herein, the Commonwealth charged Appellant with corrupt organizations, 12 possession of a controlled substance with intent to deliver, 13 criminal conspiracy to commit possession with intent to deliver a controlled substance.!" dealing in unlawful proceeds+" and criminal use of 12 Pursuant to 18 Pa.C.S.A. § 91 l(b)(l), the Commonwealth had to prove beyond a reasonable doubt that Appellant, having received income derived, directly or indirectly, from a pattern of racketeering activity in which he participated as a principal, did unlawfully use or invest, directly or indirectly, any part ·of such income, or the proceeds of such income, in the acquisition of any interest in, or the establishment or operation of any enterprise. 13 Pursuant to 35 P.S. § 780-113(a)(30), the Commonwealth had to prove beyond a reasonable doubt that Appellant did deliver or possess with intent to deliver a controlled substance classified in Schedule I, II, III or IV to wit: Methamphetamine. 14 Pursuant to 18 Pa.C.S.A. § 903(a) and 35 P.S. § 780-l 13(a)(30), the Commonwealth had to prove beyond a reasonable doubt that Appellant had the intent of promoting or facilitating the crime of possession with the intent to deliver a controlled substance with another and agreed- that they or one or more of them would engage in conduct which constitutes such crime or attempt or solicitation to commit such crime; or agreed to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime. See Commonwealth v. Kinard,95 A.3d 279
, 293 (Pa.Super. 2014) (en bane) (citation omitted); Commonwealth v. Watley, 81 A.3d l08, 115-16 (Pa.Super. 2013) (en bane) (quoting Commonwealth v. Feliciano,67 A.3d 19
, 25- 26) (en bane)). 15 Pursuant to 18 Pa.C.S.A. § 511 I (a)(l ), the Commonwealth had to prove beyond a 20 communication Iacility.w Regarding the charge of criminal conspiracy in particular, the Superior Court in Kinard,supra