Com. v. Madera, K.

J-S73022-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KELVIN MADERA :
:
Appellant : No. 535 MDA 2019
Appeal from the Judgment of Sentence Entered October 25, 2018
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0000017-2017
BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED: OCTOBER 7, 2020
Kelvin Madera appeals from the judgment of sentence, entered in the
Court of Common Pleas of Berks County, following his conviction for two
counts each of possession with intent to deliver (PWID - heroin and cocaine)1
and possession of a controlled substance (heroin and cocaine)2 and one count
each of conspiracy to commit delivery of a controlled substance3 and
conspiracy to commit possession of a controlled substance.4 After careful
review, we affirm.
____________________________________________
1 35 P.S. § 780-113(a)(30).
2 35 P.S. § 780-113(a)(16).
3 18 Pa.C.S. § 903(a)(1); 35 P.S. § 780-115(a)(30).
4 18 Pa.C.S. § 903(a)(1); 35 P.S. § 780-115(a)(16).
J-S73022-19
Madera was raised by his parents, Madeline Rivera (Rivera) and Jesus
Madera (a/k/a Chelo) (collectively, Parents), in a home located at 504 East
Wyomissing Avenue, Reading, Pennsylvania. On August 19, 2016, detectives
from the Berks County District Attorney’s Office began surveilling the family
home under the suspicion that Parents were using the residence to package
and distribute cocaine and heroin. Trial Court Opinion, 5/27/20, at ¶ 3. On
September 1, 2016, twelve days after detectives successfully completed an
undercover purchase of cocaine from Chelo, the D.A.’s office organized
another undercover purchase, this time with Rivera, and subsequently
arrested her on her way to complete the deal. Id. Detectives discovered
four white glassine baggies of heroin (two with a “distinct green logo” on the
exterior) and one baggie of cocaine in Rivera’s possession. Id.
After securing a search warrant, detectives entered the family home,
where Chelo was seated on the couch and in possession of the cell phone used
to conduct the undercover buy.5 At that time, Chelo stated that “[he was]
going to take the charges [and that] everything in the house [was his].” N.T.
Jury Trial, 9/18/18, at 121. Chelo then directed the detectives to a black
jacket at the top of the stairs where he claimed they could find a “few
____________________________________________
5 According to the trial testimony of Detective Joseph Walsh, Chelo was given
his Miranda rights by Sergeant Todd Harris prior to this questioning. N.T.
Jury Trial, 9/18/18, at 90.
-2-
J-S73022-19
bundles[6] of heroin and some [baggies] of coke.” Id. at 120. After locating
the jacket, detectives continued their search of the second floor of the
residence where they found Madera lying on the bed in the second-floor front
bedroom. Id. at 122. Madera’s cell phone was taken into evidence; because
he was not considered a suspect at that time, he was not arrested. Id. at
122, 173.
However, detectives later searched Madera’s bedroom where they found
clothing that appeared to fit Madera, mail addressed to Madera, Madera’s
social security card and birth certificate, and “11 baggies of cocaine[,] a large
metal cocaine press, several bottles of a cutting agent, a digital scale, rolling
papers, and rubber bands [used for bundling bags of drugs].” Trial Court
Opinion, 5/27/20, at ¶ 4. Additionally, detectives found a gray Old Navy pea
coat, size men’s large, in the second-floor bedroom closet. The top, right
pocket of the pea coat contained new and unused plastic Ziploc baggies, as
well as 288 white glassine packets containing heroin.7 N.T. Jury Trial,
9/18/18, at 177. Detectives subsequently searched Madera’s cell phone,
pursuant to a warrant, and found four separate text message conversations
between Madera and an individual named “Jerry,” from whom detectives
believed Madera had purchased heroin. N.T. Jury Trial, 9/18/18, at 173, 193.
____________________________________________
6According to Sergeant Harris, “a bundle of heroin . . . is 10 glassine packets
of heroin [which are] rubber banded together.” Id. at 121.
7Thus, this amount was two baggies short of 29 full bundles. See N.T. Jury
Trial, 9/18/18, at 178.
-3-
J-S73022-19
In the first text conversation, which occurred on August 15, 2016—just
fifteen days before the search of the family home—Jerry asked if Madera “still
wanted the shoes size 10” and stated that “it w[ould] be [$]750.”
Commonwealth’s Exhibit 1, at 105, 108. Madera and Jerry met later that day
in a local Burger King parking lot to complete the transaction. N.T. Jury Trial,
9/18/18, at 195. On August 29, 2016, just two days before the search,
Madera texted Jerry that “[the product had] gotten weak [and it has] slowed
me down big time.” Commonwealth’s Exhibit 1, at 119. Jerry claimed to have
gotten “some[]thing new,” to which Madera responded that he had “no cash”
because he still “[had] a lot of food from going shopping the last time.” Id.
Madera then asked whether “there [was] any way [to] switch what [Jerry]
gave [him] last [time] . . . [because it’s] just sitting.” Id. at 122. On
September 1, 2016, approximately 2½ hours before detectives searched
Madera’s house, Madera told Jerry that “people[] is [sic] going else[]where
instead to me,” and that “this [product] ain[’]t [sic] with it man [a]n[d] I gotta
[sic] get bills paid.” Id.
After reviewing these text messages and identifying Madera’s
fingerprints on the cocaine press found in his room, Madera was placed under
arrest.8 N.T. Jury Trial, 9/18/18, at 201; see also Trial Court 1925(a)
Opinion, 5/27/20, at 4. Prior to trial, the Commonwealth filed a Pa.R.E. 404(b)
____________________________________________
8 In all, detectives located “approximately 6.7 grams” of heroin and
“approximately 10.59 grams” of cocaine in Madera’s house. N.T. Jury Trial,
9/19/18, at 298, 310.
-4-
J-S73022-19
notice of its intent to introduce the text conversations between Madera and
Jerry. In its notice, the Commonwealth averred it “believes [the texts]
illustrate evidence of drug trafficking at around the date and time of the
above[-]captioned matter.” Commonwealth’s Pa.R.E. 404(b) Notice, 1/12/18,
at 1. On January 29, 2018, Madera filed a motion in limine to exclude the
Rule 404(b) testimony claiming that the “alleged communications have
absolutely no connection to the incidents charged” and that they “are not
relevant to the current matter” and, thus should be precluded. Motion In
Limine, 1/29/18, at 1-2. The court held a hearing on Madera’s motion on
March 9, 2018. On September 2, 2018, the court denied Madera’s motion in
limine.
At trial, Madera testified that he had not lived at Parents’ house since
he was 18 years old, that because he moved around a lot he had his mail sent
to Parent’s house, and that he was only visiting their house at the time of the
search. N.T. Jury Trial, 9/19/18, at 425, 427-29. Further, Madera claimed
that he first saw the cocaine press in his room earlier in the summer of 2016.
Id. at 429-31. Unaware of its purpose, Madera stated that he did in fact touch
the device “two or three” times that summer, but only did so to move it out
of his way and into his closet. Id. Madera testified that he was not involved
in selling drugs with Parents.
Madera also testified at length about his text messages with Jerry. Id.
at 435-42. Madera testified that these messages were related to a personal
purchase of “10 bags of weed” and not for the heroin found in his closet. Id.
-5-
J-S73022-19
at 435. Madera claimed that Jerry “mistype[d 750]” when quoting the price
of the drugs and that Madera “easily assumed that the zero was just an extra
or an accident.” Id. at 436. Madera acknowledged that the amount of drugs
he received was “short,” but stated that he “never used a scale” and knew the
weight of the drug based on intuition. Id. at 437. When asked what he meant
by “peoples is [sic] going elsewhere instead to me,” Madera testified that he
“was just having a bad day,” and that “[he] was just frustrated overall.” Id.
at 440. Lastly, Madera claimed that his reference to “bills” was just him
“complaining, hoping [he] would get . . . a refund in cash” and that it was not
a reference to an inability to sell drugs to pay his bills. Id.
Detective John Lackner also testified at length about the heroin trade
and the drugs found in Madera’s closet, as well as his interpretation of
Madera’s text messages with Jerry. Id. at 297-348. Detective Lackner
testified that, in his professional experience, Madera’s conversation with Jerry
was typical of a conversation between “people that are involved in drug
trafficking.” Id. at 331. Lackner further stated that a “size 10 shoe” was code
for “10 of something” and that at the time of the text conversations, 10 grams
of heroin cost roughly $750, the price quoted by Jerry. Id. at 331-33. With
respect to the heroin found in Madera’s bedroom, Lackner testified that the
heroin was clearly not for personal use, stating “[i]f I w[ere] a user . . . I
wouldn’t purchase this amount, 6.7 grams of heroin, as it’s packaged here
today because I’d spend a lot more money on that [amount] than if I would
buy it in bulk.” Id. at 300.
-6-
J-S73022-19
Following a four-day jury trial in September 2018, Madera was found
guilty by a jury of the above-mentioned offenses.9 At sentencing Madera
stated, “I’d just like to say that everybody makes mistakes . . . [a]nd here I
am in my first act, first situation. . . . I take full responsibility for it.” N.T
Sentencing, 10/25/18, at 14. The court sentenced Madera to two consecutive
terms of 14 months to 5 years’ imprisonment for each PWID charge and a
concurrent 10-year probationary term for the conspiracy to commit delivery
charge.10 Madera was also deemed eligible for the Commonwealth’s
Recidivism Risk Reduction Incentive (RRRI)11 Program and determined to be
boot camp eligible.12 On November 15, 2018, Madera filed post-sentence
motions challenging the weight and sufficiency of the evidence, as well as the
discretionary aspects of his sentence. On April 3, 2019, Madera’s post-
sentence motions were denied by operation of law. See Pa.R.Crim.P.
720(B)(3)(b).
____________________________________________
9 The original criminal information charged Madera with two counts of delivery
of a controlled substance (heroin and cocaine) and conspiracy to commit
delivery. However, on September 17, 2018, the day before trial commenced,
the Commonwealth amended the information, with the agreement of defense
counsel, to change the delivery charges and conspiracy (delivery) charge to
PWID and conspiracy to commit PWID. See Order, 9/18/18.
10 The possession charges merged for purposes of sentencing.
11 See 61 Pa.C.S. §§ 4501-4512.
12 See 61 Pa.C.S. §§ 3901-3909.
-7-
J-S73022-19
Madera filed a timely notice of appeal. On April 4, 2019, the trial court
ordered Madera to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal within 30 days from the date of the entry of the order
on the docket. Counsel filed Madera’s Rule 1925(b) statement on June 10,
2019, more than one month past the filing deadline outlined in the court’s
Rule 1925(b) order.13
On appeal, Madera presents the following issues for our consideration:
(1) The court committed an abuse of discretion in permitting
the admission of evidence of prior text messages as prior
bad acts evidence when the messages were unrelated to the
crime for which he was charged, and, therefore, irrelevant
and the prejudicial effect outweighed the probative value.
Commonwealth v. Hicks, 156 A.3d 1114 (Pa. 2017).
(2) The evidence at trial was not sufficient as a matter of law to
support a conviction for [p]ossession with intent to deliver
controlled substances.
(a) No evidence was presented that [Madera] participated
in [P]arent’s drug scheme because [the]
Commonwealth could not establish that there was any
firm agreement or understanding that the co-
defendants were working in concert or on behalf of
[Madera] and there was no evidence to establish the
agreement necessary to show conspiracy.
(b) [Madera] was never seen in possession of controlled
substances . . . and [he] denied the transaction.
____________________________________________
13 On January 22, 2020, our Court remanded the matter to the trial court for
the preparation of a responsive Rule 1925(a) opinion. See Commonwealth
v. Madera, No. 535 MDA 2019 (memorandum decision filed Jan. 22, 2020)
(finding that because counsel prejudiced client and was per se ineffective by
filing Rule 1925(b) statement late, claims were not waived on appeal). On
May 27, 2020, the trial court complied with our directive and filed its opinion
in the matter.
-8-
J-S73022-19
(3) The verdicts were against the weight of the evidence, and
the verdicts in this case shock the conscience [sic].
Appellant’s Brief, at 7.
Madera first asserts that it was prejudicial error to deny his motion in
limine and admit his text message conversations with Jerry because the texts
relate to a personal purchase of marijuana and do not bear on the crime for
which he was charged. Id. at 18-21. Madera also argues that the texts were
significantly more prejudicial than probative, as they permitted the jury to
conclude that he possessed the heroin in his room and was involved in a
conspiracy to sell cocaine and heroin with Parents. Id. Madera’s argument
rests generally on the claim that “without the admission of the texts, the jury
could have come very easily to the [] conclusion that [when] law enforcement
came [on] the day of the search[,] Madera had simply dropped into his
parents’ house in the course of his other activities to take a nap and just
happened to be in the wrong place at the wrong time.” Id. at 20 (emphasis
added).
When ruling on a trial court’s decision to grant or deny a motion in
limine, our Court employs an evidentiary abuse of discretion standard of
review. Commonwealth v. Moser, 999 A.2d 602, 605 (Pa. Super. 2010). A
trial court abuses its discretion when its decision “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
-9-
J-S73022-19
result of partiality, prejudice, bias or ill will.” Commonwealth v. Albrecht,
720 A.2d 693, 704 (Pa. 1998) (citation omitted).
Generally speaking, evidence is considered relevant if it “logically
tend[s] to establish a material fact in the case, tends to make a fact at issue
more or less probable or supports a reasonable inference or presumption
regarding a material fact.” Commonwealth v. Hicks, 156 A.2d 1114, 1125
(Pa. 2017) (internal citation omitted); see also Pa.R.E. 401. Evidence of a
defendant’s prior bad acts, while generally not admissible to prove bad
character or criminal propensity, may be admissible for some other relevant
purpose. See Pa.R.E. 404(b); see also Commonwealth v. Spotz, 756 A.2d
1139, 1152 (Pa. 2000). One of the recognized exceptions to Rule 404, for
which evidence of other crimes may be introduced, includes the res gestae
exception. Pa.R.E. 404(b)(2);14 see also Commonwealth v. Williams, 896
A.2d 523, 539 (Pa. 2006). Our courts have long recognized the special
significance of evidence which provides jurors with the res gestae, or complete
____________________________________________
14 Pennsylvania Rule of Evidence 404(b)(2) provides:
(b) Crimes, Wrongs, or Other Acts.
(2) Permitted Uses. [E]vidence [of a crime, wrong, or other
act] may be admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident. In a criminal
case[,] this evidence is admissible only if the probative value of
the evidence outweighs its potential for unfair prejudice.
Pa.R.E. 404(b)(2) (emphasis added).
- 10 -
J-S73022-19
history, of a crime. Commonwealth v. Paddy, 800 A.2d 294, 308 (Pa.
2002). In these circumstances, character evidence is admissible “where the
distinct crimes were part of a chain or sequence of events which formed the
history of the case and were part of its natural development.”
Commonwealth v. Billa, 555 A.2d 835, 840 (Pa. 1989) citing
Commonwealth v. Lark, 543 A.2d 491, 497 (Pa. 1988 (under res gestae
exception, “evidence of other criminal acts is admissible ‘to complete the story
of the crime on trial by proving its immediate context of happenings near in
time and place.’”) (internal quotations omitted).
Instantly, the trial court admitted portions of the text messages on the
grounds that it fit within the res gestae exception. See Commonwealth v.
Paddy, 800 A.2d 294 (Pa. 2002). Specifically, the court introduced certain
portions of text messages, but precluded references to marijuana. The court’s
evidentiary order stated in a footnote, “The Commonwealth may introduce the
challenged relevant evidence to furnish the context or complete story of the
events surrounding the alleged crimes and to demonstrate intent.” Trial Court
Order, 9/17/18, at n.1.
“Res gestae” evidence is admissible “where [it] was part of the chain or
sequence of events which became part of the history of the case and formed
part of the natural development of the facts.” Commonwealth v. Lark, 543
- 11 -
J-S73022-19
A.2d 491, 497 (Pa. 1988).15 See Commonwealth v. Brown, 52 A.3d 320,
332 (Pa. Super. 2012) (must be close “interconnectedness” between bad act
and charged crime where one could say “the bad acts are part of the same
transaction involving the charged crime”). In assessing the applicability of
the res gestae exception, the trial court is required to balance the probative
value of the evidence in question against its prejudicial impact.
Commonwealth v. Powell, 956 A.2d 406, 419 (Pa. 2008). Courts shall
weigh factors such as “the strength of the ‘other crimes’ evidence . . . the time
lapse between crimes, the need for the other crimes evidence, the efficacy of
alternative proof of the charged crime, and the degree to which the evidence
probably will rouse the jury to overmastering hostility.” Commonwealth v.
Weakley, 972 A.2d 1182, 1191 (Pa. Super. 2009) (internal citation omitted).
In determining whether the probative value of the evidence is substantially
outweighed by its prejudicial effect, this Court has noted that “[there is] no
fixed standard on which to rely, but [that the trial court] must instead consider
the nature of the crime, the evidence being offered, and all attendant
circumstances.” Commonwealth v. Smith, 808 A.2d 215, 225 (Pa. Super.
____________________________________________
15 We have previously stated that all evidence in a criminal proceeding is
prejudicial to the defendant, but that relevant evidence is to be excluded only
when it is unfairly prejudicial, or put another way, “so prejudicial that it may
inflame the jury to make a decision based upon something other than the legal
propositions relevant to the case.” Commonwealth v. Serge, 837 A.2d
1225, 1261 (Pa. Super. 1999) (internal citation omitted).
- 12 -
J-S73022-19
2002), quoting Commonwealth v. Clark, 421 A.2d 374, 376 (Pa. Super.
1980).
In challenging the trial court’s decision to admit the text messages under
the res gestae exception, Madera cites generally to Commonwealth v.
Brown, 52 A.3d 320 (Pa. Super. 2012). Appellant’s Brief, at 20. In Brown,
we ruled that evidence regarding the defendant’s physician’s improper receipt
of his medical degree twenty years earlier, as well as his submission of forged
or altered documents to obtain his medical license, was erroneously admitted
for proving his involvement in a prescriptions-for-cash scheme. Id. at 322.
Finding that the alleged bad acts were “so far removed from the charged
crimes,” we held that they could not logically be considered a part of the
“history, chain, or sequence of events." Id.We find the evidence at issue in the present case is distinguishable from
that in Brown. Compared to the 20-year lapse between the prior bad act and
the prescription-for-cash scheme in Brown, here the text exchanges between
Madera and Jerry occurred just fifteen days prior to the search and continued
throughout the day of the search. N.T. Jury Trial, 9/18/18, at 193. Further,
the bad acts alleged by the prosecution directly relate to the crimes for which
Madera was charged and convicted. N.T. Jury Trial, 9/19/18, at 330-31.
Although Madera claimed that the texts were merely used to establish that he
had previously purchased marijuana or was a drug user, the text evidence
was not admitted for that purpose. Specifically, the prosecution alleged that
- 13 -
J-S73022-19
the purchase of drugs was in effect not a “prior bad act,” but rather the
beginning of the history of the crime at issue. We agree.
Here, the text messages prove Madera’s intent to participate in the drug
activity within his home, explain the sources and quantity of the seized drugs,
and establish the sequence of events which formed the history of the case.
The four text message conversations tended to prove that Madera purchased
10 grams of heroin from Jerry which he repackaged and sold from his home
less than three weeks before the search and arrest. The texts also illustrated
Madera’s displeasure about the poor quality of the product which resulted in
Madera’s customers having to buy their drugs elsewhere. See
Commonwealth’s Exhibit 1, at 119, 122 (Madera stating that “[the product
purchased had] gotten weak” and that people were “going elsewhere instead
[of coming] to [him].”); see also id. at 122 (Madera expressing his frustration
of being unable to sell the drugs and claiming that “I gotta [sic] get bills
paid.”). Additionally, Detective Lackner testified at trial that Madera and
Jerry’s agreed-upon sale price, found in the body of the text messages, was
consistent with the price of a bulk purchase of 10 grams of heroin— notably,
detectives located approximately 6.7 grams of heroin in Madera’s closet. N.T.
Jury Trial, 9/19/18, at 298.
It is clear from the text exchanges, as well as Detective Lackner’s
testimony, that the evidence falls squarely within the res gestae exception.
The texts demonstrate the history of how Madera acquired heroin with the
- 14 -
J-S73022-19
intent to re-sell it. They are inextricably linked to the crimes charged and
they were sent close in time to the crimes themselves. Accordingly, we
conclude that the trial court did not abuse its discretion in admitting the
evidence where its judgment was manifestly reasonable and without partiality,
prejudice, bias or ill will. Albrecht, supra.
Madera next challenges the sufficiency of the evidence to support his
convictions for PWID and conspiracy to commit delivery of a controlled
substance. Specifically, he contends that: the evidence at trial did not
sufficiently show that he had the intent to deliver drugs; he was never seen
in possession of the controlled substances found in his house; and the
Commonwealth did not establish that there was a “firm agreement” between
Madera and his parents to engage in a criminal conspiracy to commit PWID.
Appellant’s Brief, at 6-7.
A claim challenging the sufficiency of the evidence is a question of law.
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. Commonwealth v. Karkaria, 625
A.2d 1167 (Pa. 1993). When reviewing a sufficiency claim, the court is
required to view the evidence 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. Chambers, 599 A.2d 630 (Pa. 1991).
- 15 -
J-S73022-19
To establish the offense of PWID,16 the Commonwealth must prove
beyond a reasonable doubt that the defendant possessed a controlled
substance with the intent to deliver it. See Commonwealth v. Greenlee,
212 A.3d 1038, 1045 (Pa. Super. 2019). The requisite intent to deliver can
and often is determined from an examination of all the facts and surrounding
circumstances. Commonwealth v. Robinson, 582 A.2d 14, 17 (Pa. Super.
1990). “[P]ossession with intent to deliver can be inferred from the quantity
of drugs possessed and other surrounding circumstances, such as [the
presence of drug paraphernalia and] lack of paraphernalia for consumption.
Commonwealth v. Jones, 874 A.2d 108, 121 (Pa. Super. 2005).
In drug possession cases, the Commonwealth must also prove that a
“defendant had knowing or intentional possession of a controlled substance,
and if the substance is not found on the defendant’s person, then the
Commonwealth must satisfy that burden by proof of ‘constructive
possession.’” Commonwealth v. Valette, 614 A.2d 548, 549-50 (Pa. 1992).
Constructive possession has been defined as “the power to control the
contraband and the intent to exercise that control.” See Commonwealth v.
Murdick, 507 A.2d 1212, 1214 (Pa. 1986) (internal quotation omitted).
“Intent to maintain a conscious dominion [over the contraband] . . . may be
inferred from the totality of the circumstances, and from circumstantial
____________________________________________
16 35 P.S. § 780-113(a)(30).
- 16 -
J-S73022-19
evidence.” Commonwealth v. Mercado, 617 A.2d 342, 344 (Pa. Super.
1992).
Multiple persons may constructively possess contraband if it is found in
an area of joint control and equal access. Id. In Murdick, the defendant was
convicted of PWID for drugs found in the bedroom he shared with his wife.
507 A.2d at 1212. After this Court reversed Murdick’s convictions based on
insufficiency of the evidence to establish constructive possession, our
Supreme Court found that this type of possession could be established if
multiple actors exercise dominion over the area. Id. at 1214. The Court
reinstated the defendant’s convictions for possession and PWID, concluding
that “even absent a marital relationship[,] constructive possession may be
found in either or both actors if contraband is found in an area of joint control
and equal access.” Id. see also Commonwealth v. Macolino, 469 A.2d
132, 134-35 (Pa. 1983).
In challenging the sufficiency of the evidence, Madera almost exclusively
relies on Mercado, supra, where our Court reversed the defendant’s PWID
conviction and held that the defendant’s mere presence in the building during
a search, as well as his presence in the apartment where the drugs were
located two days before the search, was insufficient to establish possession of
the drug. Id. at 345-46. The facts in Mercado, however, are notably
distinguishable from those in the present case.
- 17 -
J-S73022-19
Here, Madera clearly exercised dominion and control over the area
where the drugs were found— his bedroom. See N.T. Jury Trial, 9/18/18, at
158-73. Madera was not charged with PWID merely because he was present
in the room where the drugs were found, but rather because his personal
effects were located in that room and he claimed the room to be his. Id. at
158-88. Further, the drugs were packaged with materials that were also
located in the room and his fingerprints were found on the press located in
the bedroom closet. Id. In addition, unlike the defendant in Mercado, who
was not present in the same room as the drugs during the search, Madera
was in the bedroom when the police searched the house. Id.
With regard to his conspiracy conviction, the offense is defined, in part,
as:
(a) Definition of conspiracy. —A person is guilty of
conspiracy with another person or persons to commit a
crime if with the intent of promoting of facilitating its
commission he:
(1) agrees with such other person or persons that they or
one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to
commit such crime[.]
18 Pa.C.S.A. § 903(a). A conspiratorial agreement can be proven by either
direct evidence or circumstantial evidence; given the secretive nature of the
act, circumstantial evidence is much more likely. See Commonwealth v.
Davenport, 452 A.2d 1058, 1061 (Pa. Super. 1982). This circumstantial
evidence can consist of an association between alleged conspirators,
knowledge of the commission of the crime, presence at the scene of the crime,
- 18 -
J-S73022-19
and, in some situations, participation in the object of the conspiracy. See
Commonwealth v. Gibson, 668 A.2d 552, 555 (Pa. Super. 1995). Although
a criminal conspiracy requires an agreement to commit an unlawful act, the
existence of an agreement need not be express, but rather may be inferred
from the surrounding circumstances. Commonwealth v. Davenport, 452
A.2d 1058, 1060 (Pa. Super. 1982). Therefore, contrary to Madera’s assertion
on appeal, the agreement need not be “firm” among co-conspirators to prove
a criminal conspiracy.
Here, both cocaine and heroin were found in multiple places in Parents’
home— in both Madera’s and Rivera’s bedrooms. Moreover, Parents were
each caught in undercover operations selling cocaine and heroin; Rivera had
just left the family home before she met with detectives to deliver drugs. N.T
Jury Trial, 9/18/18, at 65-71, 88-91, 121-22, 147-52, 162-88. Further, when
investigators searched Parent’s home on September 1, 2016, Chelo admitted
that the drugs in the house were his and that he frequently stayed at the
residence. Id. at 90-91, 121. Not only did the logo on the two bags of heroin
found on Rivera match those found in Madera’s closet, but Madera was two
bags short of 29 full bundles when police searched his bedroom. Id. at 65-
71. Additionally, the jury could infer that the text conversations with Jerry
indicated Madera was purchasing 10 grams of heroin for packaging and
distribution.
Making all positive inferences in favor of the verdict winner at trial, there
was sufficient evidence to find that Madera both possessed the drugs with the
- 19 -
J-S73022-19
intent to deliver and was involved in a conspiracy with Parents to sell heroin
and cocaine. Chambers, supra.
In his final claim on appeal, Madera challenges the weight of the
evidence17 to support his convictions. Madera’s entire argument consists of
the following sentence: “[W]ithout the decision of the trial court regarding
prior bad acts, the evidence would have been so tenuous that [the] verdict
would shock the conscious of the court.” Appellant’s Brief, at 28. With no
case law or references to the record to support his claim, we deem the issue
waived. See Pa.R.A.P. 2119. However, even if we did not find the weight
claim waived, we would still find it meritless having already concluded that
the trial court correctly admitted the text messages under the res gestae
exception.
Judgment of sentence affirmed.
____________________________________________
17 A motion for a 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. Commonwealth v. Whiteman, 485 A.2d 459, 462 (Pa. Super.
1984). An allegation that the verdict is against the weight of the evidence is
addressed to the discretion of the trial court. Commonwealth v. Brown,
648 A.2d 1177, 1189 (Pa. 1994). A new trial should not be granted because
of a mere conflict in the testimony or because the court on the same facts
would have arrived at a different conclusion. Thompson v. Philadelphia,
493 A.2d 669, 672 (Pa. 1985). In cases where these issues are raised, a new
trial should be granted only when the verdict is so contrary to the evidence as
to shock one’s sense of justice. Commonwealth v. Dancy, 650 A.2d 448,
452 (Pa. Super. 1994) (internal citation omitted).
- 20 -
J-S73022-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/07/2020
- 21 -