Com. v. Gil, A.

J-A11042-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANGEL FERDINAND GIL :
:
Appellant : No. 525 EDA 2021
Appeal from the Judgment of Sentence Entered December 21, 2020
In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-
39-CR-0000920-2018
BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 23, 2022
Angel Ferdinand Gil appeals from the judgment of sentence entered
following his convictions for two counts of possession with intent to deliver a
controlled substance, two counts of possession of a controlled substance,
one count of drug paraphernalia, and one count of tampering with physical
evidence.1 Gil contends that the trial court erred by denying his motion for
extraordinary relief. We affirm.
The lower court summarized the facts as follows:
In December of 2017, the Allentown Police Department
(“APD”), with the help of a confidential informant (“CI”),
conducted a drug investigation involving [Gil]. On
December 19, 2017, members of the APD’s Vice and
Intelligence unit applied for and received a search warrant
for [Gil’s] residence at 416 N. Fenwick Street in Allentown,
____________________________________________
1 35 P.S. §§ 780-113(a)(30), (a)16, (a)32, and 18 Pa.C.S.A. § 4910(1),
respectively.
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Pennsylvania, Lehigh County. [Gil] lives at the address
with his girlfriend, Anisa Roche, and Roche’s disabled adult
son. The residence is a row home. Upon entering the front
at street level, a set of stairs leads up to the living room
and kitchen on the second floor. From there, another set of
stairs leads to bedrooms on the third floor.
At 6:24 a.m. on December 20, 2017, members of APD’s
Emergency Response Team (“ERT”) executed the search
warrant at the residence. Detective Christopher Diehl, a
member of the ERT, approached the front door. Diehl
pounded on the door three times and yelled, “Allentown
Police. Search Warrant, 416 North Fenwick. Come open the
door.” There was no response, so after approximately 10
seconds, Diehl knocked and announced again. Diehl heard
dogs barking, but nobody came to the door. Diehl then
received a radio transmission from perimeter officers that
there was a light on and someone was seen running up the
stairs. For a third time, Diehl knocked and announced, but
received no response. At that point, another officer utilized
a battering ram to breach the door.
***
According to the testimony at trial, in the bathroom on the
third floor of the residence, police located a Pyrex cup in
the toilet, broken into pieces. A defective retrieved the
pieces of broken glass. More than a gram of suspected
crack cocaine was in the toilet along with the glass.
Officers located an open safe in the third floor bedroom
containing five individually-wrapped clear plastic bags of
crystal methamphetamine and several vehicle titles. [Gil’s]
passport and birth certificate were in the same safe. On
top of the safe, officers located several boxes of sandwich
bags and a vise press, as well as two $100 bills and
suspected cocaine spilled on the floor. [Gil’s] wallet was
located on a dresser in that bedroom, and powder cocaine
was located in one of the drawers of the dresser. Police
also located $1,100 in U.S. currency and a digital scale. In
sum, police seized $1,340 in U.S. currency and four
cellular phones. Tests performed on the suspected
controlled substances revealed that they consisted of
methamphetamine and cocaine.
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During the trial, [Gil’s] cousin, John Joseph [Santos],
testified and maintained the drugs were his for personal
use. [Gil] also testified at trial. He denied that the drugs
were his and told the jury they belonged to [Santos]. He
also asserted that he did not live at the residence.
Trial Court Opinion, filed 8/13/21, at 2-4 (citation and footnotes omitted).
A jury convicted Gil of the above-referenced offenses on October 16,
2019. His sentencing was scheduled for December 21, 2020. Three days
prior to the sentencing hearing, Gil filed a motion for extraordinary relief
pursuant to Pennsylvania Rule of Criminal Procedure 704(B). Gil alleged that
his convictions for possession with intent to deliver and possession of a
controlled substance should be vacated because after his trial, Santos, Gil’s
cousin, was arrested and pleaded guilty to intentional possession of a
controlled substance. The charges were based solely on Santos’ admission at
Gil’s trial that Santos possessed the drugs at issue for his personal use. See
Motion for Extraordinary Relief, 12/18/20, at ¶¶ 15, 20.
Gil argued that while Pennsylvania recognizes several theories by
which multiple people can possess the same drugs, such as conspiracy,
constructive possession, or accomplice liability, none of those theories were
applicable here and the Commonwealth improperly convicted two people of
possessing the same drugs at the same place and time. Id. at ¶¶ 21-24. Gil
claimed that a new trial was warranted so that a new jury could be
presented with evidence of Santos’ subsequent prosecution and conviction.
Immediately prior to sentencing, on December 21, 2020, Gil made an
oral motion for extraordinary relief pursuant to Rule 704(B), asserting the
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same argument set forth in his written motion for extraordinary relief. N.T.,
12/21/20, at 4-6. The court denied the motion and sentenced Gil to nine to
23 months’ incarceration followed by two years of probation.
Gil filed a post-sentence motion, in which he restated his argument set
forth in his motion for extraordinary relief and requested a new trial. See
Omnibus Post-Sentence Motion, 12/28/20, at ¶ 5. The court denied his post-
sentence motion on February 10, 2021, and this appeal followed. Gil asserts
the following issue: “Whether the sentencing court erred by denying [Gil’s]
[m]otion for [e]xtraordinary [r]elief seeking a new trial as John Santos’
subsequent prosecution amounted to after-discovered evidence[?]” Gil’s Br.
at viii.
Gil maintains that the sentencing court abused its discretion in denying
his motion for extraordinary relief. He asserts that the jury never heard that
Santos was arrested for possessing the subject drugs and “never had the
opportunity to reconcile how one can be charged with selling drugs that
another person is convicted of owning beyond a reasonable doubt for
personal use.” Gil’s Br. at 8-9. He maintains that the lower court also erred
by not analyzing his claim as an after-acquired evidence claim, and that the
Commonwealth’s conduct constituted a fraud on the court. Id. at 8, 9. He
requests relief in the form of a new trial or a remand for an evidentiary
hearing for the court to apply the elements of an after-discovered evidence
claim.
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Under extraordinary circumstances, a trial judge may hear an oral pre-
sentence motion for relief pursuant to Pa.R.Crim.P. 704(B)(1), and grant
relief. Rule 704 provides:
(B) Oral Motion for Extraordinary Relief.
(1) Under extraordinary circumstances, when the interests
of justice require, the trial judge may, before sentencing,
hear an oral motion in arrest of judgment, for a judgment
of acquittal, or for a new trial.
(2) The judge shall decide a motion for extraordinary relief
before imposing sentence, and shall not delay the
sentencing proceeding in order to decide it.
(3) A motion for extraordinary relief shall have no effect on
the preservation or waiver of issues for post-sentence
consideration or appeal.
Pa.R.Crim.P. 704(B).
The granting of a motion for extraordinary relief pursuant to Rule
704(B) is an “extreme remedy” and should only be granted “where it is
manifest, for example, that an egregious error has been committed during
trial or a change in controlling case law has occurred such that immediate
relief prior to sentencing is essential.” Commonwealth v. Bozic, 997 A.2d
1211, 1227 (Pa.Super. 2010) (citing Comment to Rule 704(B)). The Rule “is
intended to allow the trial judge the opportunity to address only those errors
so manifest that immediate relief is essential.” Commonwealth v.
Grohowski, 980 A.2d 113, 115 (Pa.Super. 2009). Rule 704(B) “was not
intended to provide a substitute vehicle for a convicted defendant to raise
matters which could otherwise be raised via post[-]sentence motions.”
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Commonwealth v. Celestin, 825 A.2d 670, 674 (Pa.Super. 2003) (citation
omitted).
The Commonwealth urges us to find waiver because Gil did not
contend that Santos’s guilty plea constituted after-acquired evidence until
his Rule 1925(b) statement. See Pa.R.A.P. 1925(b) Statement, 5/24/21, at
¶ 2. He made no such allegation in either his motion for extraordinary relief
or his post-sentence motion. In fact, at a hearing on his post-trial motion, he
specifically denied that he was pursuing an after-discovered evidence claim.
N.T., 2/4/21, at 20. Thus, the court did not address the elements of such a
claim and instead applied the standards under Rule 704(B). “Issues not
raised in the lower court are waived and cannot be raised for the first time
on appeal.” Pa.R.A.P. 302(a). Moreover, a party cannot raise an issue for the
first time in a Rule 1925(b) statement. Commonwealth v. Watson, 835
A.2d 786, 791 (Pa.Super. 2003). Accordingly, to the extent Gil seeks relief
based on an argument that the sentencing court ought to have analyzed his
motion an after-discovered evidence claim, the argument is waived.
Gil’s remaining argument – that the Commonwealth’s obtaining
convictions against both him and Santos entitled him to an evidentiary
hearing or a new trial, under Rule 704(B) – lacks merit. The court below
found:
Mr. Santos testified before the jury empaneled for [Gil’s]
trial. He told the jury the drugs were his. Based on the fact
that [Gil] was subsequently convicted, it is apparent that
the jury did not ascribe sufficient weight to that testimony
to acquit [Gil]. It is well-established that the weight to be
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afforded to testimony at trial is a matter within the
province of the jury as it judges the credibility of
witnesses. Commonwealth v. Brown, 648 A.2d 1177,
1191 (Pa. 1994). [Gil] did not cite any authority supporting
a claim that the Commonwealth would be legally prohibited
from charging two individuals separately for possession of
the same contraband even if those individuals are not
charged with conspiracy or under an accomplice liability
theory. The jury convicted [Gil] based on the evidence
presented at trial and despite Mr. Santos admitting on the
stand that the drugs were his. The subsequent prosecution
of Mr. Santos for possession of those drugs does not
change the evidence that was before the jury and did not
warrant granting [Gil] a new trial.
Trial Court Opinion, filed 6/13/21, at 11-12.
The trial court properly denied the Rule 704(B) motion. Santos
testified at trial that the drugs at issue were his. The court gave an
instruction to the jury regarding joint possession, stating that “[t]wo or more
persons may have joint possession of a controlled substance, provided each
has the intent to exercise joint control over that substance and that each has
the power to control it.” N.T., 10/16/19, at 124. Therefore, it was reasonable
for the jury to conclude that both Santos and Gil had joint possession of the
drugs, even though their testimony conflicted. The subsequent prosecution
of Santos for possession of the drugs did not warrant the extreme remedy of
granting Gil a new trial.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2022
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