Com. v. Espada, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MIGUEL ESPADA :
:
Appellant : No. 93 MDA 2022
Appeal from the Judgment of Sentence Entered December 9, 2021
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0000489-2021
BEFORE: DUBOW, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED JULY 06, 2022
Miguel Espada (Espada) appeals from the December 9, 2021 judgment
of sentence1 imposed by the Court of Common Pleas of Berks County (trial
court) following his convictions for possession with intent to deliver a
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* Retired Senior Judge assigned to the Superior Court.
1 Espada was sentenced immediately following his jury trial on December 6,
2021. On December 9, 2021, the trial court entered an amended judgment
of sentence that included additional language regarding reentry supervision
pursuant to 61 Pa.C.S. § 6137.2. The amended order appears to be
erroneously dated as December 1, 2021. Espada’s notice of appeal purports
to be from the December 6, 2021 sentence and the later order denying his
post-sentence motion. In cases where the trial court amends the judgment
of sentence during the period it maintains jurisdiction pursuant to 42 Pa.C.S.
§ 5505, the direct appeal lies from the amended judgment of sentence as
made final by the denial of post-sentence motions. See Commonwealth v.
Garzone, 993 A.2d 1245, 1254 & n.6 (Pa. Super. 2010); see also
Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001)
(en banc). We have corrected the caption accordingly.
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controlled substance (PWID), three counts of possession of a controlled
substance, possession of drug paraphernalia and public drunkenness.2
Espada’s counsel has filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009),
and a petition for leave to withdraw. We grant the petition and affirm.
I.
We glean the following facts from the certified record. On January 29,
2021, officers on patrol in Reading approached a group of three men on the
street and observed that one was smoking synthetic marijuana. Espada was
standing several feet away, bent over at the waist and leaning against a wall.
He appeared to be under the influence of synthetic marijuana. They detained
him and learned that there was an outstanding warrant for his arrest.
While searching him incident to arrest, officers recovered three baggies
of synthetic marijuana, three bundles of heroin and $163 in single dollar bills
from his pockets. Espada was wearing a fanny pack under his winter coat that
contained a cell phone, 90 yellow glassine bags of heroin, 50 blue glassine
bags of heroin, two baggies of packaged heroin and a baggie of pop-top
containers of cocaine. In total, they recovered 250 glassine bags of heroin
and 44 containers of cocaine. They additionally recovered two hypodermic
needles and a metal cap used to prepare heroin for injection.
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2 35 P.S. §§ 780-113(a)(30), (16), (32); 18 Pa.C.S. § 5505.
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At trial, the Commonwealth called Detective Darren Smith (Detective
Smith) as an expert in controlled substances, the drug culture in Reading and
whether controlled substances are possessed for distribution or personal use.
He opined that Espada possessed the synthetic marijuana for personal use
and the other substances were for distribution. He explained that the
containers of cocaine would typically sell for between $10 and $20, so Espada
possessed approximately $440 worth of cocaine in the capsules. The same
amount of cocaine could be purchased in bulk in Reading for $187 to $220.
Detective Smith testified that the 148 yellow bags contained a mixture
of fentanyl and heroin and the 102 blue bags contained fentanyl, fluoride
fentanyl and cocaine. He said that dealers would carry two types of bags to
expand their customer base, while most users prefer one type of drug.
Packaged individually, the yellow bags each contained three hundred tenths
of a gram and could be sold for a total of $740 to $1,480. Detective Smith
testified that in his experience, drugs users usually purchase between one and
ten bags at a time or up to twenty bags as a heavy user. He said that buying
in bulk, a user could purchase half a gram for $50 in Reading or one gram for
$100. The blue bags also contained three hundred tenths of a gram and could
be sold for $510 to $1,020. Detective Smith estimated that Espada had
approximately $2,000 worth of narcotics at the time of his arrest. Buying in
bulk, Espada could have purchased the same amount of drugs for $1,000.
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Detective Smith testified that while Espada only had $163 in cash on his
person, the fact that the cash was entirely in one-dollar bills held together
with rubber bands also contributed to his conclusion that he was selling
narcotics. He said that a street-level dealer selling stamp bags for between
$5 and $10 would have a lot of small bills, while a heavy drug user is unlikely
to have a significant amount of cash at any time. Fanny packs were also
commonly used by drug dealers in Reading as they allowed them to keep their
product secure while also having quick access for sales. Finally, he testified
that even though Espada was likely a drug user, many users also sell drugs to
support their own addictions. He said that an individual who only uses drugs
would not likely have the volume and variety of narcotics found on Espada.
He said that most users consumed between 10 and 20 bags within a day, and
the heaviest user he had encountered in his career used 40 bags per day.
Espada testified that he was 56 years old and had been using drugs
regularly since he was 21. He said that at the time of his arrest, he would
consume five or six bags and three of the pop-top containers at a time and
use the metal cap to mix the substances together. He would use that amount
of narcotics five or six times per day. He said that he purchased the drugs on
the day of his arrest and then smoked synthetic marijuana immediately before
the officers arrived at the scene. He had arranged to purchase five bricks of
heroin and two bundles of cocaine and paid his dealer $1,300. Espada testified
that he would have consumed all of the drugs in approximately three days.
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Espada said that he was not employed at the time of his arrest and that
he had borrowed $1,500 from an acquaintance who worked as a drug
counselor. The acquaintance knew Espada was a drug addict but Espada did
not tell him he planned to use the money to buy drugs. He said that he was
not able to spend that amount of money on drugs every day, but that when
he did come into money, he would spend it on drugs. He estimated that he
spent at least $2,000 per month on drugs. He said that he had $163 in one-
dollar bills because he had exchanged $200 from the loan for singles and then
purchased some other items. He purchased the drugs from a dealer he was
familiar with rather than buying in bulk because he did not want to risk buying
from someone he did not know.
A jury found Espada not guilty of PWID for the cocaine and guilty of all
the remaining charges. For the count of PWID for which he was convicted,
the jury found by special interrogatory that the bags contained heroin and
fentanyl. Espada proceeded immediately to sentencing and the trial court
sentenced him to five to ten years’ incarceration for PWID, six to 12 months’
concurrent incarceration for the counts of possession of cocaine and synthetic
marijuana,3 and one year of concurrent probation for the count of possession
of drug paraphernalia. For the count of public drunkenness, the trial court
imposed a $25 fine. Espada filed a timely post-sentence motion seeking a
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3 The count of possession of heroin and fentanyl merged with PWID.
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new trial based on the weight of the evidence to support his PWID conviction
or, in the alternative, reconsideration of his sentence. The trial court denied
the motion and Espada timely appealed. He and the trial court have complied
with Pa. R.A.P. 1925.
II.
“When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Martuscelli, 54 A.3d 940, 947 (Pa. Super.
2013). Procedurally, counsel must: (1) petition the court for leave to
withdraw stating that, after making a conscientious examination of the record,
counsel has determined that the appeal would be frivolous; (2) furnish a copy
of the brief to the defendant; and (3) advise the defendant that he or she has
the right to retain private counsel or raise additional arguments that the
defendant deems worthy of the court’s attention. See Commonwealth v.
Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013). Substantial compliance
with these requirements is sufficient to permit withdrawal. Commonwealth
v. Reid, 117 A.3d 777, 781 (Pa. Super. 2015).
Counsel has substantially complied with these procedural mandates.
Counsel’s brief avers that he reviewed the entire record and concluded that
the instant appeal is frivolous. He served a copy of the brief and petition to
withdraw on Espada and filed a copy of the letter he sent to Espada in this
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Court.4 See Commonwealth v. Woods, 939 A.2d 896, 900 (Pa. Super.
2007) (noting that counsel must attach to their withdrawal petition a copy of
the letter sent to the client). The letter informed Espada that he has the right
to hire private counsel or file a pro se brief. Espada has not filed a response
or retained private counsel to represent him.
We now examine the substantive elements of the Anders brief. The
brief accompanying the petition to withdraw must: (1) provide a summary of
the procedural history and facts with citations to the record; (2) refer to
anything in the record that counsel believes arguably supports the appeal; (3)
set forth counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous. See Santiago,
supra, at 361. Counsel’s Anders brief summarizes the factual and procedural
history, identifies three potential issues, and outlines the legal and factual
analysis that led counsel to conclude that any appeal would be frivolous.
Because counsel has complied with the procedural and substantive
requirements of Anders, we now “make a full examination of the proceedings
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4 Counsel initially did not attach his letter to Espada to his application to
withdraw. In response to an order from this Court, Counsel averred that he
had inadvertently failed to attach the letter to his application and had sent
Espada a second copy of the letter, brief and application to withdraw. He
attached a copy of the letter to his response and we conclude he has complied
with the procedural mandate.
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and make an independent judgment to decide whether the appeal is in fact
wholly frivolous.” Santiago, supra, at 355 n.5.
A.
First, counsel addresses the sufficiency of the evidence to support
Espada’s conviction for PWID.5 At trial, Espada conceded that he had
possessed the controlled substances but argued that they were for personal
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5 Our standard of review is well-settled:
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 [this] 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.
Commonwealth v. Lopez, 57 A.3d 74, 79 (Pa. Super. 2012) (citation
omitted).
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consumption and not for sale.6 He testified that he had suffered from addiction
for 35 years and would have consumed all of the narcotics found on his person
in approximately three days. He points to the hypodermic needles and metal
cap in his possession as further evidence that he merely possessed the drugs
for personal use rather than for sale.
To obtain a conviction for PWID, the Commonwealth must prove beyond
a reasonable doubt that the defendant manufactured, delivered or possessed
with the intent to deliver a controlled substance when not registered or
licensed to do so. 35 P.S. § 780-113(a)(30). Intent to distribute can be
established through all factors surrounding the defendant’s possession of the
drugs, including
the manner in which the controlled substance was packaged, the
behavior of the defendant, the presence of drug paraphernalia,
and large sums of cash. 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.
The expert testimony of a witness qualified in the field of drug
distribution, coupled with the presence of drug paraphernalia, is
sufficient to establish intent to deliver.
Commonwealth v. Carpenter, 955 A.2d 411, 414 (Pa. Super. 2008)
(citations omitted). No single factor is dispositive, and even a relatively small
amount of drugs or cash can support a conviction for PWID if the remaining
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6Based on Espada’s admissions at trial, any challenge to the sufficiency of the
evidence to support his convictions for possession of a controlled substance,
possession of drug paraphernalia and public drunkenness would be frivolous.
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factors establish an intent to deliver. Id. at 415 (citing Commonwealth v.
Clark, 942 A.2d 895 (Pa. 2008); Commonwealth v. Keefer, 487 A.2d 915(Pa. Super. 1985)).
Viewing the evidence in the light most favorable to the Commonwealth,
it established beyond a reasonable doubt that Espada possessed the bags with
the intent to distribute them. Espada had 250 bags at the time of his arrest,
with two separate combinations of controlled substances in color-coded
packaging. Detective Smith testified that dealers tend to carry different types
of narcotics while users tend to favor a single type. The bags were packaged
for individual sale and a user could obtain the same amount of narcotics
substantially cheaper by buying in bulk. Espada had $163 in one-dollar bills
in his pocket, which Detective Smith testified was consistent with making
smaller sales to individual users. Detective Smith had also observed an
increase in drug dealers in Reading using fanny packs to conceal their product.
While Espada did candidly admit to his own drug use, his personal use
of narcotics does not foreclose the likelihood that he intended to distribute at
least some of the narcotics he possessed. Detective Smith testified that users
will sometimes sell drugs to support their own addiction. In his experience,
most drug users would consume between 10 and 20 bags of heroin per day,
and the heaviest drug user he had encountered in his career used 40 bags per
day. He said it was uncommon for a drug user to have larger sums of cash.
Based on all these factors, he opined that Espada had possessed the bags with
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intent to distribute them. Detective Smith’s expert testimony, combined with
the evidence that the narcotics were packaged for individual sale and that
Espada had $163 in cash on his person, was sufficient to support the
conviction for PWID. See Carpenter, supra. Accordingly, any challenge to
the sufficiency of the evidence to support his conviction is frivolous.
B.
Next, counsel assesses the weight of the evidence to support Espada’s
conviction for PWID.7 “An allegation that the verdict is against the weight of
the evidence is addressed to the discretion of the trial court.”
Commonwealth v. Sullivan, 820 A.2d 795, 805-06 (Pa. Super. 2003)
(citation omitted). “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.
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7 When evaluating a challenge to the weight of the evidence to support a
conviction, this court does not reweigh the evidence presented at trial, but
rather evaluates the trial court’s denial of the motion for a new trial for an
abuse of discretion. Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa.
2013). An abuse of discretion occurs “where the course pursued represents
not merely an error of judgment, but where the judgment is manifestly
unreasonable or where the law is not applied or where the record shows that
the action is a result of partiality, prejudice, bias or ill-will.” Id. (citation
omitted). A trial court’s determination that the verdict was not against the
weight of the evidence is “[o]ne of the least assailable reasons for granting a
new trial.” Id. (citation omitted).
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Widmer, 744 A.2d 745, 752 (Pa. 2000) (quotations omitted). A new trial is
appropriate only when the verdict “is so contrary to the evidence as to shock
one’s sense of justice.” Commonwealth v. Olsen, 82 A.3d 1041, 1049 (Pa.
Super. 2013) (citation omitted). “[T]he evidence must be so tenuous, vague
and uncertain that the verdict shocks the conscience of the court.”
Commonwealth v. Akhmedov, 216 A.3d 307, 326 (Pa. Super. 2019) (en
banc) (citation omitted).
Espada’s post-sentence motion challenged the weight of the evidence to
support his PWID conviction because he testified that he would have
consumed the drugs within three days and that he was an addict.8 He further
argued that no evidence was presented by the Commonwealth to refute the
claim that he could use that amount of narcotics within that time period.
However, the jury was entitled to consider Espada’s testimony and the
testimony of the Commonwealth’s witnesses, particularly Detective Smith,
and conclude that Espada had, in fact, intended to distribute the heroin and
fentanyl.9 After observing the testimony of all of the witnesses, the trial court
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8 A challenge to the weight of the evidence must be preserved orally on the
record or in writing prior to sentencing or in a post-sentence motion;
otherwise, it is waived for our review. See Pa.R.Crim.P. 607(A), 720(B).
Because Espada only challenged the weight of the evidence to support his
conviction for PWID in the trial court, any weight claim related to his other
convictions is wholly frivolous.
9Additionally, we note that Espada’s testimony that he was a drug addict was
not inconsistent with the intent to deliver the narcotics. Detective Smith
(Footnote Continued Next Page)
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concluded that it was reasonable for the jury not to credit Espada’s testimony.
We may not reweigh this evidence on appeal to come to a contrary conclusion.
Clay, supra. The trial court did not abuse its discretion in holding that the
verdict of guilt was not so contrary to the evidence as to shock one’s sense of
justice. Olsen, supra. This claim is frivolous.
C.
Finally, we consider whether the trial court abused its discretion in
denying Espada’s post-sentence motion for reconsideration of his sentence.10
“The right to appellate review of the discretionary aspects of a sentence is not
absolute, and must be considered a petition for permission to appeal.”
Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa. Super. 2018) (citation
omitted). An appellant must preserve his claims at the time of sentencing or
in a post-sentence motion, file a timely notice of appeal, include a statement
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testified that in his experience, some lower-level street drug dealers were also
drug users who sold narcotics to support their own habits.
10
Our standard of review is well-settled:
Sentencing 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. Wallace, 244 A.3d 1261, 1278–79 (Pa. Super. 2021)
(citation omitted).
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of reasons for allowance of appeal pursuant to Pa. R.A.P. 2119(f) in his brief,
and raise a substantial question for review. Id. Here, Espada filed a timely
post-sentence motion and notice of appeal and counsel has included a
statement pursuant to Pa. R.A.P. 2119(f) in his brief. Thus, we consider
whether he has raised a substantial question.
“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.”
Commonwealth v. Clarke, 70 A.3d 1281, 1286–87 (Pa. Super. 2013)
(citation omitted). Espada contends that the trial court imposed a manifestly
excessive sentence without considering mitigating factors, such as his 35-year
drug addiction and need for treatment. This claim presents a substantial
question for our review. Commonwealth v. DiClaudio, 210 A.3d 1070,
1075-76 (Pa. Super. 2019) (citations omitted); see also 42 Pa.C.S.
§ 9721(b). Accordingly, we proceed to the merits of his claim.
When reviewing the discretionary aspects of a sentence that falls within
the sentencing guidelines, we must affirm unless the “application of the
guidelines would be clearly unreasonable.” 42 Pa.C.S. § 9781(c)(2). In
assessing the reasonableness of a sentence, we consider
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
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(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
When imposing a sentence, a trial court must ensure that the sentence
is “consistent with the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721(b). “Where the
sentencing court had the benefit of a presentence investigation report (“PSI”),
we can assume the sentencing court was aware of relevant information
regarding the defendant’s character and weighed those considerations along
with mitigating statutory factors. Further, where a sentence is within the
standard range of the guidelines, Pennsylvania law views the sentence as
appropriate under the Sentencing Code.” Commonwealth v. Hill, 210 A.3d
1104, 1117 (Pa. Super. 2019) (internal quotations & citation omitted).
Here, the jury found Espada guilty of PWID for a mixture of heroin and
fentanyl. Based on his Prior Record Score (PRS) of five, the standard range
of the sentencing guidelines for PWID of heroin was a minimum of 24 to 30
months’ incarceration. The standard range for PWID of fentanyl was a
minimum of 60 to 72 months of incarceration. The Commonwealth
recommended a sentence of four to eight years, acknowledging that Espada
was a low-level dealer who struggled with addiction himself. Espada argued
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for “the lowest possible sentence” that would allow him to participate in the
state drug treatment program. N.T., 12/6/21, at 181. Counsel said that
Espada had been sober since his arrest and was in need of further treatment.
She stressed Espada’s heavy drug use at the time of his arrest and contended
that users may only engage in distribution to support their own addictions. In
his allocution, Espada told the trial court, “I would like treatment, if that’s
what I need, it would probably help too. I would like to get help. I know I
got a sickness, but I got—I would like to get help.” Id. at 182.
The trial court then reviewed Espada’s PSI and detailed his criminal
history, which began in 1988. He had previously been convicted of PWID,
theft, accidents involving death or injury, burglary, simple assault, terroristic
threats and multiple counts of possession of a controlled substance. The trial
court observed that since 1988, Espada had been on supervision with various
probation departments for significant periods of time. He completed a drug
and alcohol treatment program in 2007 but continued to use drugs thereafter.
He had remained unemployed due to his addiction. Based on this history, the
trial court concluded that Espada had a high risk of re-offending.
The trial court also considered the large quantity of drugs Espada had
at the time of his arrest and the danger associated with mixing fentanyl with
heroin and distributing it. It noted that Espada had asked for treatment “if
that’s what I need” in his allocution and concluded that he had prior
opportunities to seek treatment, to no avail. Id. Accordingly, it imposed a
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sentence of 5 to 10 years for PWID, which was at the bottom of the standard
range for PWID of fentanyl, with concurrent sentences for the other offenses.
Under these circumstances, we cannot conclude that the trial court failed to
consider mitigating evidence and all required factors under the Sentencing
Code when it imposed Espada’s sentence. See Hill, supra. The sentence is
not clearly unreasonable and any challenge to the trial court’s exercise of
discretion is frivolous.
Moreover, after independently reviewing the record, we conclude that
there are no additional non-frivolous issues that may support the appeal. See
Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en
banc) (holding that the Anders procedure requires this Court to first review
the issues raised by counsel and then review the entire record “to ascertain if
on its face, there are non-frivolous issues that counsel, intentionally or not,
missed or misstated”).
Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/06/2022
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