Com. v. Pichaldo, J.

J-S31019-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOSUE PICHALDO, :
:
Appellant : No. 1676 EDA 2013
Appeal from the Judgment of Sentence Entered May 7, 2013,
In the Court of Common Pleas of Philadelphia County,
Criminal Division, at No. CP-51-CR-0006994-2011.
BEFORE: BOWES, SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JULY 31, 2014
Appellant, Josue Pichaldo, appeals from the judgment of sentence
entered May 7, 2013, following his conviction of possession of a controlled
possession of drug paraphernalia, and conspiracy. We affirm.
The trial court summarized the facts of the case as follows:
On March 29, 2011, at approximately 6:30 p.m., [O]fficers
[Richard] Woertz and Myers[1] conducted surveillance on the
3400 block of G Street in Philadelphia to investigate alleged
illegal narcotics activity. Officer Woertz testified that shortly
after commencing the surveillance, Appellant, Josue Pichaldo,
exited the residence under surveillance, 3437 G Street,
approached a red and white SUV parked near the property,
engaged the driver in conversation and proceeded to pass an
unidentified object to the driver. In return, the driver handed
1
e is not identified in the certified record.
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Appellant a white bag which Appellant placed under his shirt and
returned to the property.
[That same day,] [t]he officers then met with a
confidential informant (CI) whom they searched and confirmed
he had nothing in his possession. Officer Woertz supplied the CI
with $300 prerecorded buy money and sent him to the 3400
block of G Street while the officers conducted surveillance.
Officer Woertz observed Appellant approach the CI and the CI
handed Appellant the $300 of prerecorded buy money.
Appellant then handed the CI a rectangular object wrapped in
newspaper. The CI returned to the officers and at which time
the officers opened the package and found 10 bundles of alleged
heroin totaling 140 packets. The packets were stamped with
contents of the packets tested positive for
heroin . . . totaling . . . 2.148 grams.
The following day, March 30, 2011, Officers Woertz and
Myers again conducted a surveillance of the property 3437 G
Street. At approximately 2:30 p.m., Appellant and Gabriel
[2]
Martinez exited the property, walked over to a black Chrysler
300M taxi and drove to the intersection of Rising Sun Avenue
and Tiber Street. There, Appellant and Mr. Martinez exited the
vehicle and walked west on Tiber Street until they approached a
middle-aged Hispanic male. Appellant engaged the individual in
conversation and preceded to hand the individual an unknown
amount of money. The male, in return, handed Appellant an
object and Appellant and Mr. Martinez returned to the black taxi
and began driving away. Officers Woertz and Myers stopped the
taxi near the intersection of F and Tioga Streets. As they
approached the vehicle, the officers witnessed Appellant remove
an object from his pocket and place it under his right leg.
Appellant was removed from the vehicle and the officers found a
4x6 clear sandwich bag containing a substance later tested to be
heroin totaling 9.233 grams in weight.
The officers obtained a search warrant and executed a
search of 3437 G Street at approximately 6:30 p.m. on March
30, 2011. Inside the residence, the officers recovered a DirecTV
bill in the name of Mr. Martinez located in the dining room on the
2
-defendant at trial.
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ground floor with numerous premium channel purchases
throughout the month of March 2011. Additionally in the
basement, the officers recovered 5 bundles of heroin totaling 70
packets, a grinder with residue, a strainer with residue, a
toothbrush with residue, a straw with residue, numerous new
stapler, a scale, and numerous rubber bands. These were all
located in an exposed hole in the wall approximately eight inches
in circumference in the back of [the] basement located above a
dresser. The basement is only accessible from inside the
residence.
Trial Court Opinion, 8/7/13, at 2 3.
Appellant was charged with possession of a controlled substance,
PWID, possession of drug paraphernalia, and conspiracy. Following a bench
trial on February 12, 2013, the trial court found Appellant guilty of all
charges. N.T., 2/12/13, at 57 58. On May 7, 2013, the trial court
sentenced Appellant to five to ten years of imprisonment for conspiracy and
a concurrent term of five to ten years of imprisonment for PWID. 3 N.T.,
5/7/13, at 4 6. Appellant filed a timely appeal on June 5, 2013.
On June 18, 2013, the trial court ordered Appellant to file, within
twenty-one days or by July 9, 2013, a concise statement of errors
complained of on appeal. Appellant filed an untimely Rule 1925(b)
statement on July 15, 2013. Statement of Errors Complained of on Appeal,
3
The trial court found that possession of a controlled substance merged with
PWID for the purposes of sentencing. Order, 5/7/13, at 1. Additionally, no
further penalty was imposed for possession of drug paraphernalia. Id.
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and on August 7, 2013, the trial court issued its opinion pursuant to
Pa.R.A.P. 1925(a).
Preliminarily, we address the late filing of the Rule 1925(b) statement.
twenty-one days of June 5, 2013, or by July 9, 2013, but it was not filed
until July 15, 2013. This Court repeatedly has held that the failure to file a
Rule 1925 statement constitutes per se ineffective assistance of counsel.
See, e.g., Commonwealth v. McBride, 957 A.2d 752 (Pa. Super. 2008)
(failure of defense counsel to file concise statement of errors complained of
on appeal constituted per se ineffectiveness); Commonwealth v. Scott,
is per se ineffectiveness). We have reached the same result when presented
with an untimely filing. Commonwealth v. Thompson, 39 A.3d 335 (Pa.
Super. 2012); Commonwealth v. Burton, 973 A.2d 428 (Pa. Super.
2009). When counsel has filed an untimely Rule 1925(b) statement and the
trial court has addressed those issues, however, we need not remand and
may address the merits of the issues. Thompson, 39 A.3d at 340.
In the present case, in its August 7, 2013 opinion, the trial court
addressed the issue outlined in the late Rule 1925(b) statement, which
[Appellant] of
Possession with Intent to Distribute. Particularly, the Commonwealth failed
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to create a nexus between Appellant PICHALDO and the heroin and
Statement of Errors
Complained of on Appeal, 7/15/13, at 1. Thus, we need not remand
pursuant to Pa.R.A.P. 1925(c)(3), and we will consider the issue. See
Thompson
1925(b) statement and the trial court has addressed those issues[,] we need
not remand and may address the merits
Brief at 3 (full capitalization omitted). In the argument section of his brief,
Appellant narrows the issue and asserts that there is insufficient evidence to
find him guilty of PWID. Id. at 9 10.
In reviewing the sufficiency of the evidence, we must determine
whether the evidence admitted at trial and all reasonable inferences drawn
therefrom, viewed in the light most favorable to the Commonwealth as
verdict winner, was sufficient to prove every element of the offense beyond
a reasonable doubt. Commonwealth v. James, 46 A.3d 776 (Pa. Super.
2012). It is within the province of the fact-finder to determine the weight to
the evidence. Commonwealth v. Cousar, 928 A.2d 1025 (Pa. 2007);
Commonwealth v. Moreno, 14 A.3d 133 (Pa. Super. 2011). The
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Commonwealth may sustain its burden of proving every element of the
crime beyond a reasonable doubt by means of wholly circumstantial
evidence. Commonwealth v. Hansley, 24 A.3d 410 (Pa. Super. 2011).
Moreover, as an appellate court, we may not re-weigh the evidence and
substitute our judgment for that of the fact-finder. Commonwealth v.
Ratsamy, 934 A.2d 1233 (Pa. 2007); Commonwealth v. Brown, 23 A.3d
resolved by the fact-finder unless the evidence is so inconclusive that as a
matter of law no probability of fact may be drawn from the circumstances.
Moreno, 14 A.3d at 133.
In order to sustain a conviction for PWID, the Commonwealth must
establish possession of a controlled substance and intent to deliver it. 35
P.S. § 780-113(a)(3); Commonwealth v. Estepp, 17 A.3d 939, 944 (Pa.
Super. 2011). If the contraband is not found on the defendant, the
Commonwealth must prove he had constructive possession of it. Estepp,
17 A.3d at 944.
The existence of constructive possession of a controlled
substance is demonstrated by the ability to exercise a conscious
dominion over the illegal substance: the power to control the
illegal substance and the intent to exercise that control. An
intent to maintain a conscious dominion may be inferred from
the totality of the circumstances. Thus, circumstantial evidence
may be used to establish constructive possession of the illegal
substance. Additionally, our Court has recognized that
constructive possession may be found in one or more actors
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where the item in issue is in an area of joint control and equal
access.
Commonwealth v. Johnson, 26 A.3d 381, 1093 1094 (Pa. 2011) (internal
quotation marks and citations omitted). The court may consider factors
such as the quantity of the controlled substance, the manner in which the
controlled substance was packaged, the behavior of the defendant, the
presence of drug paraphernalia, and large sums of cash found in possession
of the defendant when determining whether a defendant intended to deliver
a controlled substance. Ratsamy, 934 A.2d at 1237 1238.
We note initially that we could find this issue waived. Other than
citing case law defining constructive possession, Appellant fails to develop
the issue in any meaningful way in the argument section of his brief. See
Commonwealth v. Palo, 24 A.3d 1050, 1058 (Pa. Super. 2011) (waiving
argument presents only bald, conclusory, unsupported claims that lack
citation to the record and pertinent law. Nevertheless, we address the issue.
Appellant posits that he was not in constructive possession of the
heroin found at 3437 G Street or in the vehicle. Our review of the record
compels the contrary conclusion.
At trial, the Commonwealth presented the testimony of Officer Woertz,
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May 29, 2011, Officer Woertz set up surveillance outside of 3437 G Street,
where he observed Appellant engage in a transaction with the driver of a
vehicle parked nearby. N.T., 2/12/13, at 9 10. The driver gave Appellant a
white bag, which he placed under his shirt, and Appellant subsequently
entered the property of 3437 G Street. Id. Later that day, Officer Woertz
-recorded buy money, and
Officer Woertz observed the CI purchase 140 packets of heroin from
Appellant; the packets were Id. at 11 13.
On May 30, 2011, Officers Woertz and Meyers witnessed Appellant and
Martinez leave the property at 3437 G Street and lock the door. N.T.,
2/12/13, at 15. They then entered a black taxi, which they exited at Tiber
Street, whereupon Appellant and Martinez met a middle-aged Hispanic male.
Id. at 15 16. Appellant gave money to the unidentified male in exchange
for an object. Id. Appellant and Martinez returned to the taxi, which the
officers approached when it stopped at F and Tioga Streets. Id. at 16.
The officers asked Appellant to exit the vehicle, and recovered
approximately nine grams of heroin, which they recovered from the seat
where Appellant was sitting. N.T., 2/12/13, at 16. Appellant and Martinez
were arrested, and two keys for 3437 G Street were found on Martinez. Id.
After he was arrested, Appellant told Officer Woertz that 3437 G Street was
his address. Id. at 47. The officers subsequently executed a search warrant
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for 3437 G Street at 6:30 p.m. on May 30, 2011, and recovered a DirecTV
Id. at 19 20.
The record compels the conclusion that the Commonwealth presented
sufficient evidence to enable the trial court, as the fact-finder, to determine
that each element of PWID was proven beyond a reasonable doubt.
Appellant was seen entering and exiting 3437 G Street over the two-day
investigation. N.T., 2/12/13, at 10, 15. He told Officer Woertz that 3437 G
Street was his address. Id. at 47. The packaging of the heroin that
Appellant sold to the CI matched the paraphernalia found at 3437 G Street.
Id
pack
with Martinez, it is clear that the Commonwealth presented sufficient
evidence to establish that Appellant was in constructive possession of the
heroin found at 3437 G Street. Id. at 10, 13, 15, 16, 19.
Moreover, there is also sufficient evidence to prove Appellant was in
constructive possession of the 9.223 grams of heroin found in the vehicle.
After the officers observed Appellant give the unknown Hispanic male money
in exchange for an object, they saw Appellant remove an object from his
pocket and place it under his right leg on the seat of the car. N.T., 2/12/13,
at 16. The circumstances of the transaction and the location of the heroin
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on the seat demonstrated that Appellant was in constructive possession of
the heroin found in the vehicle.
In addition to proving constructive possession of the heroin found at
intent to deliver the heroin. The quantity of heroin recovered, the way the
heroin was packaged, and the presence of the stamp pad and other drug
heroin found at 3437 G Street and in the vehicle. Ratsamy, 934 A.2d at
1237 1238. This evidence, viewed in the light most favorable to the
Commonwealth, while circumstantial, established that Appellant was in
constructive possession of the heroin and intended to deliver it.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/31/2014
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