Com. v. Gonzalez, J.

J-S60035-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSE LUIS GONZALEZ, JR.
Appellant No. 309 MDA 2014
Appeal from the Judgment of Sentence August 28, 2013
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0000175-2013
BEFORE: OTT, J., STABILE, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED DECEMBER 22, 2014
Jose Gonzalez (“Appellant”) appeals the judgment of sentence imposed
on August 28, 2013, following his conviction for possession of a controlled
substance with intent to deliver (“PWID”),1 possession of a controlled
substance,2 and possession of drug paraphernalia.3 After careful review, we
affirm.
The trial court summarized the trial testimony and procedural history
as follows:
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1
35 P.S. § 780-113(a)(30).
2
35 P.S. § 780-113(a)(16).
3
35 P.S. § 780-113(a)(32).
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The charges against [Appellant] stem from an incident that
occurred on July 10, 2013 when several law enforcement officers
presented themselves to 638 Oak Street, Apartment 4 in the
City of Lebanon, Lebanon County, Pennsylvania for the purpose
of executing an arrest warrant on [Appellant]. Upon entering
the apartment Sergeant Jonathan Hess observed several people
located inside the apartment, one of whom was [Appellant].
After obtaining permission from [Appellant’s] mother,
Wanda Gonzalez, who was the lessee of the apartment, Lebanon
County Drug Task Force Detective Ryan Mong took part in the
search of the specific bedroom in which [Appellant] was staying.
During the search of [Appellant’s] bedroom, Det. Mong
recovered 17 total bags of heroin, drug paraphernalia and new
drug packaging baggies which were located on the nightstand by
the bed. Several packets were laying below the nightstand. A
photograph taken by Det. Mong showed a heroin packet, a
sandwich baggy containing new drug packages and apple zip
baggies containing heroin which were all located on the
nightstand. There was an additional bag containing heroin on
the floor. The apple zip baggie contained a bundle of heroin.
Det. Mong testified that a bundle typically contains 10 packets of
heroin in a single bundle rubber banded together. Det. Mong
went on to state that typically when someone buys in bulk, a
bundle of heroin typically comes in packets of 10.
At trial, Det. Mong described Exhibits 12 and 13. Exhibit
12 was a large apple zip baggy containing a bundle of heroin and
the single small zip baggie of heroin found at the nightstand.
Exhibit 13 was two used or unused larger zip baggies. In
addition, there was a sandwich baggy containing numerous
amounts of small clear colored zip baggies. The single packet of
heroin in Exhibit 13 was the same size, shape and appearance of
the new drug packaging baggies that were recovered from
[Appellant’s] bedroom. Det. Mong showed the jury the 16
glassine packets of heroin and a small zip baggy of heroin. He
pointed out that it was the same size, shape and appearance as
the new sandwich baggies containing new drug packaging.
Sgt. Hess indicated that [Appellant] was taken into custody
after an entire search of the apartment was conducted. Once in
the patrol car, [Appellant] admitted to having items on his
person for which he was going to be charged. A search of
[Appellant] revealed synthetic marijuana, rolling papers and
$34.00 in cash.
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During the interview process, [Appellant] admitted to Det.
Mong that the drugs and heroin found in the apartment belonged
to him. [Appellant] stated the following in his written
statement:
A. . . . [T]he cops came into took [sic] everybody to the
ground. I came out back after looking out the back window. I
laid on the ground. I left 20 bags dope [sic] in the room I was
in. I was about to get high when the boys showed up and they
found the stuff that all belongs to me. Nobody in the house
except me knew it was there.
Given Det. Mong’s training and expertise, he believed that
the heroin was possessed by [Appellant] with intent to deliver.
Det. Mong based this belief upon the following factors:
(1) There were 17 bags of heroin recovered from the
apartment.
(2) There was new drug packaging that was the same
size, appearance, and shape of the single heroin
baggy that was located in the residence.
(3) There is no reason for a heroin user to have new
drug packaging.
(4) The most common way to inject heroin is through
the use of hypodermic needle shooting in a vein; no
such injection paraphernalia was located.
(5) A typical heroin user does not have 17 bags of
heroin. They are usually unemployed and looking for
the next high.
(6) Typical heroin addicts are malnourished, usually
have diseases, are in trouble with the law, don’t take
care of themselves, and rarely have enough money
to be able to afford a residence. In addition, heroin
users often appear drowsy, in and out of
consciousness, delayed in speech, and unable to
function at a high level. [Appellant] did not exhibit
these characteristics.
Lebanon County Prison Counselor Tina Verna testified that
part of her job requires her to ask every male inmate coming
into the prison several questions which are recorded on a pre-
printed form. On January 14, 2013, Counselor Verna questioned
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[Appellant] as to whether or not he had a drug and alcohol
dependency. [Appellant] responded yes to alcohol. [Appellant]
stated that he was an alcoholic but did not mention anything
about having a heroin addiction.
[Appellant] was found guilty on all counts and was
sentenced on August 28, 2013 to a sentence within the
suggested sentencing guidelines. [Appellant] filed timely Post-
Sentence Motions on September 9, 2013 challenging the weight
and sufficiency of the evidence.
Trial Court Post-Sentence Motion Opinion, January 3, 20144 (“Trial Court
Opinion”), pp. 1-5 (record citations and capitalizations omitted).
On September 9, 2013, Appellant filed post-sentence motions raising:
(1) a sufficiency of the evidence claim; (2) a weight of the evidence claim;
and (3) a discretionary aspects of sentence claim. The trial court denied
Appellant’s post-sentence motions on January 3, 2014. Thereafter,
Appellant filed a timely notice of appeal and complied with the trial court’s
order to file a statement of matters complained of on appeal.
Appellant raises the following issues for our review:
I. Did the Commonwealth fail to present sufficient evidence at
trial to prove beyond a reasonable doubt that the Appellant
possessed 0.72 tenths of a gram of Heroin with the intent to
distribute?
II. Did the jury give too great a weight to the testimony of
Detective Ryan Mong regarding his opinion that the 0.72 tenths
of a gram of Heroin was possessed with the intent to distribute?
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4
By Order dated March 13, 2014, the trial court forwarded the trial court file
to this Court, noting that its January 3, 2014 opinion addressed Appellant’s
matters complained of on appeal. Accordingly, we will treat the trial court’s
January 3, 2014 opinion as its Pa.R.A.P. 1925(a) opinion.
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III. Did the Sentencing Court err in sentencing Appellant to the
top of the standard range for his minimum sentence at Action
Number CP-38-CR-175-2013 and running that sentence
consecutively to the sentence imposed at Action Number CP-38-
CR-176-2013 when the Appellant had a prior record score of
zero and only two (2) misdemeanor juvenile adjudications, and
did the Sentencing Court consider improper facts when molding
Appellant’s sentence?
Appellant’s Brief, p. 4.
Appellant first argues that the Commonwealth failed to prove that he
committed the crime of PWID. See Appellant’s Brief, pp. 10-12.
Specifically, Appellant claims the Commonwealth failed to prove he had the
intent to distribute the heroin. Id. He is incorrect.
When examining a challenge to the sufficiency of evidence, this Court’s
standard of review is as follows:
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
[trier] 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. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal
denied, 32 A.3d 1275 (Pa.2011).
The Crimes Code defines PWID as follows:
(a) The following acts and the causing thereof within the
Commonwealth are hereby prohibited:
*****
(30) Except as authorized by this act, the manufacture,
delivery, or possession with intent to manufacture or
deliver, a controlled substance by a person not registered
under this act, or a practitioner not registered or licensed
by the appropriate State board, or knowingly creating,
delivering or possessing with intent to deliver, a
counterfeit controlled substance.
35 P.S. § 780-113(a)(30). “[I]t is well settled that intent to deliver may be
inferred from an examination of the facts and circumstances surrounding the
case.” Commonwealth v. Daniels, 999 A.2d 590, 595 (Pa.Super.2010).
“When determining whether a defendant had the requisite intent to deliver,
relevant factors for consideration are the manner in which the controlled
substance was packaged, the behavior of the defendant, the presence of
drug paraphernalia, and large sums of cash.” Commonwealth v.
Carpenter, 955 A.2d 411, 414 (Pa.Super.2008) (internal quotation marks
and citation omitted). “Expert opinion testimony is also admissible
concerning whether the facts surrounding the possession of controlled
substances are consistent with an intent to deliver rather than with an intent
to possess it for personal use.” Id. (internal quotation marks and citation
omitted).
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Here, the trial court explained its rejection of Appellant’s sufficiency of
the evidence claim as follows:
[Appellant] was charged with three counts. Count 1
charged [Appellant] with [p]ossessing [h]eroin with the [i]ntent
to [d]eliver it. Count 2 charged [Appellant] with [p]ossessing
[h]eroin. Count 3 charged [p]ossession of [d]rug
[p]araphernalia. More than enough evidence was presented to
support each count.
Synthetic substances and rolling paper[s] were found on
[Appellant’s] person when he was arrested. [Appellant]
admitted to police that they would find substances on his person
that would eventually lead to criminal charges. Within
[Appellant’s] apartment, police found a large amount of heroin.
This heroin was packaged in bags via which it could be easily
delivered to other individuals. Additional bags were found in
[Appellant’s] apartment that could be used to package still more
heroin. [Appellant] admitted to police that all of the heroin and
drug paraphernalia in his apartment belonged to him.
There are two possible reasons why [Appellant] possessed
such a large amount of heroin and drug paraphernalia. The first
explanation is that [Appellant] was a heroin addict. The second
was that [Appellant] was selling heroin to others. To establish
guilt on Count 1, the Commonwealth needed to convince the
jury that the second explanation – that [Appellant] was selling
heroin to others – was accurate. To do this, significant
testimony was presented at trial with respect to the question of
whether [Appellant] was in fact a heroin addict. Det. Mong
described the appearance and behavior of most heroin addicts.
More important, heroin is normally ingested through injection.
No needles or other injection devices were found on [Appellant’s]
person or his apartment. If the above were not enough, the
Commonwealth also presented evidence from a prison intake
clerk that [Appellant] effectively denied being a heroin addict
when he was admitted into the Lebanon County Prison.
Based upon all of the evidence presented, the jury could
have reasonably concluded that [Appellant] was not a heroin
addict and that he possessed 17 bags of heroin with the intent to
deliver those bags to other people.
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1925(a) Opinion, pp. 8-9.
Viewed in the light most favorable to the Commonwealth as verdict
winner, the trial court properly concluded that the evidence was sufficient to
convict Appellant of PWID.
Appellant also claims the trial court erred in denying his motion for a
new trial based on a weight of the evidence claim. See Appellant’s Brief, p.
13. Specifically, Appellant claims the jury placed too much weight on
Detective Mong’s testimony because Detective Mong has always testified as
an expert for the Commonwealth. Id. This claim lacks merit.
This Court’s review of weight of the evidence claims is governed by the
following standard:
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, quotations, and footnote omitted).
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Stated differently, a court may award a new trial because the verdict is
against the weight of the evidence only when the verdict is so contrary to
the evidence as to shock one’s sense of justice,5 “such that right must be
given another opportunity to prevail.” Commonwealth v. Goodwine, 692
A.2d 233, 236 (Pa.Super.1997). Moreover, appellate review of a weight
claim consists of a review of the trial court’s exercise of discretion, not a
review of the underlying question of whether the verdict is against the
weight of the evidence. Widmer, 744 A.2d at 753. When reviewing the
trial court’s determination, this Court gives the gravest deference to the
findings of the court below. We review the court’s actions for an abuse of
discretion. Id.
Simply stated, the jury’s verdict in this matter implicitly illustrates that
the jury found credible Detective Mong’s testimony that Appellant possessed
the heroin for delivery as opposed to personal consumption. The verdict
also demonstrates that the jury found other evidence of guilt significant,
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5
This Court has explained the notion of “shocking to one’s sense of justice”
as follows:
When the figure of Justice totters on her pedestal, or when the
jury's verdict, at the time of its rendition, causes the trial judge
to lose his breath, temporarily, and causes him to almost fall
from the bench, then it is truly shocking to the judicial
conscience.
Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa.Super.2004)
(internal citations and quotations omitted).
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including the amount of heroin recovered and the packaging supplies seized.
The trial court agreed with the jury’s assessment in denying Appellant’s
post-sentence motion for a new trial based on the weight of the evidence.
See Trial Court Opinion, pp. 8-9. Nothing about the verdict or the trial
court’s reasoning shocks the conscience. Appellant’s weight of the evidence
claim fails.
Finally, Appellant claims the trial court erred in sentencing him to the
top of the standard range of the sentencing guidelines and by running the
sentence consecutive to Appellant’s sentence in another matter. See
Appellant’s Brief, pp. 14-15.
These claims raise challenges to the discretionary aspects of
Appellant’s sentence. “Challenges to the discretionary aspects of sentencing
do not entitle a petitioner to review as of right.” Commonwealth v. Allen,
24 A.3d 1058, 1064 (Pa.Super.2011). Before this Court can address such a
discretionary challenge, an appellant must comply with the following
requirements:
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test: (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.
Allen, 24 A.3d at 1064.
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Here, Appellant filed a timely notice of appeal, and preserved his
issues in a motion for reconsideration of sentence. Further, Appellant’s brief
includes a concise statement of the reasons relied upon for allowance of
appeal pursuant to Pa.R.A.P. 2119(f). See Appellant’s Brief, p. 9.
Accordingly, we now determine whether Appellant has raised a substantial
question for review and, if so, proceed to a discussion of the merits of the
claim. Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki, 522 A.2d 17(Pa.1987).
In his Pa.R.A.P. 2119(f) statement, Appellant alleges that the trial
court imposed an unreasonable sentence because (1) it decided to run the
sentence consecutive to another sentence6 and (2) it based the sentence
solely on defendant’s lack of remorse at sentencing. See Appellant’s Brief,
p. 9.
Initially, we note that Appellant’s claim that his sentence is
unreasonable because the trial court decided to run it consecutive to another
sentence imposed does not raise a substantial question for our review. See
Commonwealth v. Marts, 889 A.2d 608, 612 (Pa.Super.2005) (a claim
that the consecutive nature of sentences violates the Sentencing Code fails
to raise a substantial question for review).
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6
The other matter is Docket No. CP-38-CR-176-2013, an attempted murder
conviction upon which the trial court sentenced Appellant to 20 to 40 years’
incarceration, also on August 28, 2013.
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As to his second argument, Appellant does not argue that the
sentencing court relied upon any impermissible factors in sentencing, relied
solely on the severity of the crime committed, or sentenced him beyond
statutory limits. Instead, he alleges that the sentencing court focused solely
on his lack of remorse at the sentencing hearing in imposing sentence. Id.To the extent Appellant’s claim is that the trial court viewed his silence at
sentencing as a lack of remorse and relied solely on that silence in
sentencing, this claim does raise a substantial question for appellate review.
See Commonwealth v. Bowen, 975 A.2d 1120 (Pa.Super.2009). We will
therefore address the merits of Appellant’s discretionary aspects of
sentencing claim.
If this Court grants appeal and reviews the sentence, the
standard of review is well-settled: sentencing is vested in the
discretion of the trial court, and will not be disturbed absent a
manifest abuse of that discretion. An abuse of discretion
involves a sentence which was manifestly unreasonable, or
which resulted from partiality, prejudice, bias or ill will. It is
more than just an error in judgment.
Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa.Super.2006)
(citations omitted).
Our review of the sentencing transcript reveals that the lower court did
not abuse its discretion. Instead, the trial court imposed a sentence that
was consistent with the protection of the public, took into account the
gravity of the offense as it related to the impact on the life of the victim and
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on the community, and considered the Appellant’s rehabilitative needs, as
required by 42 Pa.C.S. § 9721(b).
At sentencing, the trial court explained it considered the presentence
investigative report,7 the facts presented at trial, and all the circumstances
surrounding the crime made out to the court. N.T. 8/28/2013, pp. 14-15.
The court then sentenced Appellant to a standard range sentence within the
statutory maximum. See Commonwealth v. Moury, 992 A.2d 162, 171
(Pa.Super.2010) (“[W]here a sentence is within the standard range of the
guidelines, Pennsylvania law views the sentence as appropriate under the
Sentencing Code.”). We find no abuse of discretion.
Given the foregoing, Appellant’s claims that the trial court erred in
running his sentence consecutive to another sentence and relied solely on
his lack of remorse in sentencing fail.
Judgment of sentence affirmed.
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7
We note that, where a sentencing court had the benefit of a presentence
investigation report, we can assume the sentencing court was aware of
relevant information contained therein and weighed that information along
with any mitigating factors. Commonwealth v. Moury, 992 A.2d 162, 171
(Pa.Super.2010).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2014
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