Com. v. Martinez-Diaz, C.

J-S35015-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CARLOS MARTINEZ-DIAZ :
:
Appellant : No. 371 MDA 2021
Appeal from the Judgment of Sentence Entered June 8, 2018
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0005162-2017
BEFORE: OLSON, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED: APRIL 11, 2022
Appellant, Carlos Martinez-Diaz, appeals from the judgment of sentence
entered on June 8, 2018 in the Criminal Division of the Court of Common Pleas
of Berks County, as made final by the denial of his initial post-sentence motion
on December 22, 2020, together with the denial of his supplemental
post-sentence motion on February 16, 2021. We affirm.
In its opinion filed pursuant to Pa.R.A.P. 1925(a), the trial court
prepared a thorough summary of the historical facts established at trial in this
case. See Trial Court Opinion, 5/19/21, at 3-19. We adopt the trial court’s
recitation of these facts and incorporate it herein as if set forth at length.
At the conclusion of trial on June 7, 2018, a jury found Appellant guilty
of two counts of corrupt organizations (18 Pa.C.S.A. § 911(b)(2) and (b)(3)),
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S35015-21
one count of criminal use of a communication facility (18 Pa.C.S.A. § 7512(a)),
two counts of conspiracy (18 Pa.C.S.A. 903(a)(1)), and six counts of delivery
of a controlled substance (35 P.S. § 780-113(a)(30)). On June 8, 2018, the
trial court ordered Appellant to serve 18½ to 60 years’ imprisonment in a state
correctional facility.
Thereafter, Appellant filed a pro se post-sentence motion on June 20,
2018. The trial court, however, did not adjudicate this submission, as counsel
was still attached to the case. See Commonwealth v. Ellis, 626 A.2d 1137,
1139 (Pa. 1993) (“[T]here is no right to hybrid representation either at trial
or on appeal.”). Appellant’s sentence was thereafter amended on June 25,
2018 to include additional credit for time served before sentencing.
Appellant’s sentence was again amended on August 21, 2018 to reduce his
maximum sentence by 10 years and to impose a new aggregate sentence of
18½ to 50 years. Appellant filed a pro se notice of appeal on November 9,
2018, which this Court quashed on June 6, 2019 as untimely.
While the untimely appeal remained pending before this Court,
Appellant, on June 3, 2019, filed a petition for collateral relief pursuant to the
Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. The PCRA
court appointed counsel, who filed an amended petition on October 22, 2019,
after this Court quashed Appellant’s untimely appeal. The petition alleged that
trial counsel was ineffective in failing to file a direct appeal and requested
reinstatement of Appellant’s post-sentence and direct appeal rights. After a
hearing, the PCRA court denied the petition on January 29, 2020. Appellant
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appealed the dismissal of his collateral relief claims and, on November 30,
2020, this Court reinstated his rights to file post-sentence motions and pursue
a direct appeal.
With the assistance of new counsel, Appellant filed a post-sentence
motion on December 18, 2020. The trial court denied the motion on December
22, 2020 but gave Appellant 45 days to file a supplemental post-sentence
motion. Appellant filed a supplemental post-sentence motion on February 5,
2021, which was denied on February 16, 2021. Appellant filed a notice of
appeal on March 22, 20211 and, after extension, a concise statement of errors
pursuant to Pa.R.A.P. 1925(b) on April 19, 2021. The trial court issued its
Rule 1925(a) opinion on May 19, 2021.
Appellant’s brief raises the following issues for our review.
[Did the trial court err] and abuse its discretion in overruling
Appellant’s objection to the introduction of documents with
statements attributed to Appellant without presenting any direct
witness to the alleged statements?
____________________________________________
1 The trial court docketed Appellant’s March 22, 2021 notice of appeal on the
30th day following service of the order denying Appellant’s supplemental
post-sentence motion (February 18, 2021). Hence, we shall treat this appeal
as timely filed. See Pa.R.A.P. 903(a) (“notice[s] of appeal ... shall be filed
within 30 days after the entry of the order from which the appeal is taken”);
Pa.R.A.P. 108(a) and (d) (where a post-sentence motion has been filed in a
criminal case, any period of time computed under the appellate rules involving
the date of entry of an order by a court or other government unit, the day of
entry shall be the day the clerk of the court or the office of the government
unit mails or delivers copies of the order to the parties); Pa.R.Crim.P. 720
(A)(2)(a) (notice of appeal is due within 30 days of order denying timely
post-sentence motion).
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[Did the trial court] abuse its discretion at sentencing where the
sentencing court relied on improper factors to justify an aggregate
sentence that is tantamount to a life sentence and [where the
court failed to] consider [Appellant’s] rehabilitative needs?
Appellant’s Brief at 4.
In his first issue, Appellant argues that the admission of two exhibits
offered by the Commonwealth to connect him to a telephone number used to
make and/or forward incriminating calls and text messages violated his right
to cross-examine the witnesses against him under the Confrontation Clause
of the Sixth Amendment to the United States Constitution.2 See U.S. Const.
____________________________________________
2 Commonwealth’s Exhibit 83 (“Exhibit 83”) consists of Appellant’s
arraignment information sheet, which was completed following an exchange
between Appellant and a magistrate district judge during Appellant’s
preliminary arraignment. See N.T. Trial, 6/5/18, at 9-14. The
Commonwealth presented Exhibit 83 at trial without witness testimony
pertaining to its creation after the trial court agreed, at the Commonwealth’s
request, to take judicial notice of the document. See id. at 11; see also
Trial Court Opinion, 5/19/21, at 26-28, citing Pa.R.E. 201(b)(2) (permitting
judicial notice of facts that “can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned”).
Commonwealth’s Exhibit 86 (“Exhibit 86”) consists of Appellant’s prisoner
information report, which attributed a telephone number targeted during the
relevant police investigation to Appellant. See N.T. Trial, 6/7/18, at 285 and
400. At trial, the Commonwealth presented the testimony of Michael Mullen,
a supervisor of pretrial services at Berks County Prison, to address the nature
of the information included within an inmate information report, the process
by which such reports are prepared, and confirmation that information used
to prepare such reports comes from inmates directly. See id. at 283. Mullen
neither prepared nor reviewed Appellant’s intake report but stated that
Edward Hartzell, a correctional officer at Berks County Prison, created
Appellant’s prisoner intake form. See id. at 401. Hartzell was not available
to testify at Appellant’s trial and there is no indication in the certified record
that defense counsel had an opportunity to cross-examine Hartzell.
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amend. VI (“In all criminal prosecutions, the accused shall enjoy the right ...
to be confronted with the witnesses against him”). Appellant asserts that the
Confrontation clause barred admission of Exhibits 83 and 86 since the
individuals who prepared those documents were not made available at trial
and because he had no prior opportunity to cross-examine them. See
Appellant’s Brief at 19. Appellant also claims that the primary purpose of the
challenged exhibits is to establish facts relevant to prosecution since the
documents were created under circumstances that would lead a neutral
witness reasonably to conclude that the materials would be available for use
at a later trial. See id., quoting Commonwealth v. Brown, 139 A.3d 208,
212 (Pa. Super. 2016). Appellant observes that the challenged exhibits
constituted testimonial statements since “it is common practice for
prosecutors to use preliminary arraignment and other such paperwork to
establish a criminal defendant’s contact information where such information is
potentially incriminating.” Appellant’s Brief at 19-20. We conclude that this
claim merits no relief.3
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3 Both the trial court and the Commonwealth contend that Appellant waived
appellate review of his challenge to Exhibits 83 and 86 since he articulated
different objections at trial. See Trial Court Opinion, 5/19/21, at 44;
Commonwealth’s Brief at 14-15. After careful review of the certified record,
we disagree. While it is correct that defense counsel offered several reasons
to reject admission of Exhibits 83 and 86, he relied heavily, if not primarily,
upon the claim that these materials were unreliable in linking Appellant to the
targeted telephone number, a contention in which he emphasized the need to
confront the creators of the respective forms. See e.g. N.T. Trial, 6/5/18, at
(Footnote Continued Next Page)
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We ordinarily review a trial court's evidentiary rulings for an abuse of
discretion; however, whether the admission of evidence violates an appellant's
rights under the Confrontation Clause is a question of law subject to our
plenary, de novo review. In re N.C., 105 A.3d 1199, 1210 (Pa. 2014);
Commonwealth v. Cheng Jie Lu, 223 A.3d 260, 264 (Pa. Super. 2019);
Commonwealth v. Williams, 103 A.3d 354, 358 (Pa. Super. 2014).
The Confrontation Clause bars admission of out-of-court testimonial
statements of an unavailable witness when the defendant has not had an
opportunity for cross-examination. Michigan v. Bryant, 562 U.S. 344, 354
(2011); Davis v. Washington, 547 U.S. 813, 821 (2006); Commonwealth
v. Allshouse, 36 A.3d 163, 171 (Pa. 2012); Cheng Jie Lu, 223 A.3d at 264.
The preclusive sweep of the Confrontation Clause extends only to testimonial
statements and does not prohibit out-of-court statements which are
nontestimonial. Bryant, 562 U.S. at 354; Davis, 547 U.S. at 821;
Allshouse, 36 A.3d at 173.
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11 (defense counsel asking whether Commonwealth would subpoena
magistrate who prepared Appellant’s arraignment information form); see also
id. at 400-401 (noting that correctional officer who performed Appellant’s
prison intake interview would not be available for defense examination). While
it would be preferable if counsel had expressly invoked the Confrontation
Clause when he raised his evidentiary objections, it is evident that he placed
the need to examine the declarants before the trial court for its consideration.
Under these circumstances, we conclude that Appellant adequately preserved
his claim for appellate review.
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The law in Pennsylvania is reasonably clear that statements are
nontestimonial when made during police interrogation under circumstances
objectively indicating that the primary purpose of the interrogation is to enable
the police to meet an ongoing emergency. See Allshouse, 36 A.3d at 172,
quoting Davis, 547 U.S. at 822. Statements are deemed testimonial,
however, when circumstances objectively indicate that no ongoing emergency
exists and that the primary purpose of interrogation is to prove or disprove
past events with potential relevance to subsequent criminal prosecution. See
Allshouse, 36 A.3d at 172, quoting Davis, 547 U.S. at 822.
In considering the testimonial nature of a statement, the foregoing
decisions (and much, if not all, of Pennsylvania appellate case law addressing
the Confrontation Clause) focus upon police interrogation, the primary
purpose of such interrogations, and whether an ongoing public safety
emergency exists. These precedents do not consider whether prison intake
forms, and similar administrative materials such as preliminary arraignment
forms, fall within the category of nontestimonial statements. In addition, our
own research efforts have been unsuccessful in locating Pennsylvania
appellate authority relevant to the precise issue before us.
Nevertheless, at least one federal district court has considered and
rejected the claim that admission of administrative materials like prison intake
forms violates a criminal defendant’s rights under the Confrontation Clause.
That court offered the following rationale for its conclusion.
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In Crawford v. Washington, 541 U.S. 36, 68 (2004), the
[United States] Supreme Court reiterated that[,] “[w]here
testimonial evidence is at issue ..., the Sixth Amendment
demands what the common law required: unavailability and a
prior opportunity for cross-examination.” As such, a
Confrontation Clause violation occurs where a court allows the
admission of “testimonial” statements against a criminal
defendant who did not have an opportunity to cross-examine the
witness. Id. The [United States] Supreme Court in Crawford
did not, however, give lower courts a precise definition of the term
“testimonial.” See Crawford, 541 U.S. at 68. According to
Crawford, in its broadest formulation, testimonial statements are
“statements that were made under circumstances which would
lead an objective witness reasonably to believe that the statement
would be available for use at a later trial.” Crawford, 541 U.S. at
52 (quotation marks and citation omitted).
Since Crawford, the United States Supreme Court has continually
refined and clarified the meaning of “testimonial,” but the [] Court
has never specifically addressed the situation presented by
[defendant’s claim that the admission of a prison intake form
violated his rights under the Confrontation Clause]. In
Melendez–Diaz v. Massachusetts, [557 U.S. 305 (2009)] the
[Court] concluded that forensic lab certificates are testimonial for
the purpose of Crawford, but nonetheless emphasized the
following:
Business and public records are generally admissible absent
confrontation not because they qualify under an exception to
the hearsay rules, but because - having been created for the
administration of an entity's affairs and not for the purpose
of establishing or proving some fact at trial - they are not
testimonial.
Needham v. Whitener, No. 5:13-cv-104-FDW, 2013 WL 5636746, *5-6
(W.D.N.C. Oct. 15, 2013), quoting Melendez–Diaz, 557 U.S. at 324.
We conclude that the content of Exhibits 83 and 86 were not
“testimonial” under Crawford's general definition of that term, as both the
arraignment information form and the prisoner information form were created
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for routine administrative purposes, i.e., the collection of contact information
and the acquisition of prison census and identification data. These
administrative materials, which appear to have been created in the ordinary
course of administration by a magistrate judge and a correctional officer, were
not created by investigative law enforcement personnel in anticipation of later
use at a criminal trial to prove or disprove facts. Compare Melendez-Diaz,
557 U.S. at 309-311 (forensic lab certificates fell within core class of
testimonial statements covered by the Confrontation Clause since they were
essentially synonymous with affidavits, created for the sole purpose of
establishing the composition, quality, and net weight of a submitted drug
sample, and, as such, prepared under circumstances which would lead an
objective witness reasonably to believe that the certificates would be available
for use at a later trial). Moreover, we reach this conclusion despite the
Commonwealth’s use of Exhibits 83 and 86 to connect Appellant to a targeted
telephone number at trial since Crawford’s definition of “testimonial” turns
more so on the anticipated use and primary purpose of a particular
statement, not the ultimate or actual use to which the statement is put. 4
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4 Our decision to treat routine, biographical forms prepared for administrative
purposes as nontestimonial statements receives support from appellate cases
that address the scope of the Fifth Amendment’s right against
self-incrimination and conclude that biographical inquiries are not ordinarily
undertaken with the expectation that they will elicit incriminating responses.
Pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), a criminal defendant
is entitled to a recitation of his rights against self-incrimination prior to
(Footnote Continued Next Page)
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Because Exhibits 83 and 86 do not trigger Confrontation Clause protections
under the circumstances in this case, we hold that Appellant is not entitled to
relief.
In his second claim, Appellant forwards a challenge to the discretionary
aspects of his sentence, arguing that the trial court abused its discretion in
considering improper factors, failing to consider Appellant’s rehabilitative
needs and mitigating factors, and imposing an excessive aggregate
punishment. This claim is devoid of merit.
We have carefully reviewed the certified record, the submissions of the
parties, and the thorough discussion of Appellant’s discretionary sentencing
challenge authored by the trial court. We are satisfied that the trial court has
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custodial interrogation. Nevertheless, while statements obtained in violation
of Miranda are subject to suppression, a statement uttered in a custodial
setting is not suppressed when it constitutes a response to biographical
questioning. See Commonwealth v. Garvin, 50 A.3d 694, 698 (Pa. Super.
2012). “Generally speaking,[] information such as name, height, weight,
residence, occupation, etc. is not the kind of information which requires
Miranda warnings since it is not information generally considered as part of
an interrogation.” Garvin, 50 A.3d at 698, quoting Commonwealth v.
Jasper, 587 A.2d 705, 708–709 (Pa. 1991). Such questions are not
“calculated to, expected to, or likely to elicit an incriminating response, or ...
asked with [the] intent to extract or an expectation of eliciting an incriminating
[response].” Garvin, 50 A.3d at 698 (citations omitted). Moreover, we have
held that there is no requirement that a suspect be given Miranda warnings
where the police seek only biographical, general information for completion of
prison intake forms. See Garvin, 50 A.3d at 699, citing Commonwealth v.
Friedman, 602 A.2d 371, 378 (Pa. Super. 1992). Because biographical intake
materials such as Exhibits 83 and 86 are generated for administrative
purposes, and are not calculated to elicit incriminating responses, they are not
made under circumstances which would lead an objective witness reasonably
to believe that the materials would be available for use at a later trial.
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adequately and accurately addressed each of the claims raised by Appellant.
As such, we reject Appellant’s discretionary sentencing claim for the reasons
set forth by the trial court and adopt is rationale as our own. See Trial Court
Opinion, 5/19/21, at 30-40. Since we have adopted a portion of the trial
court’s opinion as our own, we direct the parties to attach a copy of the trial
court’s opinion to all future filings pertaining to the disposition of this appeal.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/11/2022
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Circulated 03/21/2022 03:38 PM
COMMONWEALTH OF PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA IN THE
IN THE COURT
COURT OF
OF COMMON
COMMON PLEAS
PLEAS
OF BERKS
OF BERKS COUNTY, PENNSYLVANIA
COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
CRIMINAL DIVISION
VS.
VS.
No. CP-06-CR-5162-2017
No. CP-06-CR-5162-2017
CARLOS
CARLOS MARTINEZ-DIAZ
MARTINEZ-DIAZ Assigned to: Judge
Assigned to: M. Theresa
Judge M. Theresa Johnson
Johnson
Edward
Edward C.
C. Meehan, Jr., Esquire
Meehan, Jr., Esquire
Attorney for Appellant
Attorney for Appellant
Alisa
Alisa R.
R. Hobart, Esquire
Hobart, Esquire
Attorney for the
Attorney for CommonwealthAppellee
the CommonwealthAppellee
Memorandum Opinion
Memorandum Opinion 19, 2021
May 19, 2021 M. Theresa
M. Theresa Johnson, J.
Johnson, J.
PROCEDURAL HISTORY
PROCEDURAL HISTORY
The
The defendant in the
defendant in the above-captioned case, Carlos
above-captioned case, Carlos Martinez-Diaz ("Diaz), was
Martinez-Diaz ("Diaz), was charged
charged
with
with various drug-related offenses
various drug-related offenses arising out of
arising out of incidents
incidents alleged to have
alleged to have occurred
occurred between
between May
May
31,
31, 2017,
2017, and August 2,
and August 2, 2017.
2017. On
On June
June 7,
7, 2018,
2018, aa jury found Diaz
jury found Diaz guilty of two
guilty of two counts
counts of
of corrupt
corrupt
organizations,' one count
organizations,' one count of
of criminal
criminal use
use of
of communication
communication facility, two counts
facility, two counts of
of conspiracy to
conspiracy to
commit
commit delivery of aa controlled
delivery of controlled substance'
substance' and
and six
six counts
counts of
of delivery of aa controlled
delivery of controlled substance.'
substance.'
On
On June
June 8,
8, 2018, Diaz was
2018, Diaz was ordered
ordered to
to serve
serve an
an aggregate of 18%
sentence of
aggregate sentence 18% years to 60
years to 60 years in aa
years in
state
state correctional facility. On
correctional facility. On June
June 20, 2018, Diaz
20, 2018, Diaz filed
filed aa pro se post-sentence
pro se motion which
post-sentence motion which this
this
court
court declined to address
declined to address as
as Diaz
Diaz was
was represented
represented by counsel. On
by counsel. On June
June 25,
25, 2018, Diaz's sentence
2018, Diaz's sentence
was
was amended to include
amended to include credit
credit for
for the
the 124
124 days he had
days he had previously served which
previously served which was
was mistakenly
mistakenly
omitted
omitted from the original
from the original sentencing On August
orders. On
sentencing orders. 21, 2018,
August 21, 2018, Diaz's
Diaz's sentences
sentences on two counts
on two counts
18Pa.CS.A.
18Pa.CS.A. $911()(2) and 18PA.C.S.A.
$911()(2) and PA.C.S.A. $911(b)(3)
$911(b)(3)
18
18 Pa.CS.A.
Pa.CS.A. $7512(a)
$7512(a)
18Pa.CS.A.
18Pa.CS.A. $903(a)(2) commit 35P,S.
to commit
$903(a)(2) to 35P,S. $780-113(a)630)
$780-113(a)630)
'35P.S.
'35P.S. $780-113(a)030)
$780-113(a)030)
''TJhere is
''TJhere is no constitutional right
no constitutional right to
to hybrid
hybrid r~presentation
r~presentation either at trial
either at trial or
or on
on appeal." Commonwealth •• Ellis,
appeal." Commonwealth Ellis, 626
626
A.2d
A. 2d 1137,
1137, 1139 (Pa. 1993).
1139 (Pa. 1993).
11
C
/
of delivery of a controlled substance were amended to remedy an illegal sentence.° As a result,
Diaz's total sentence was
was reduced to a term of 18%
I8% years to 50 years in a state correctional facility.
facility.
On November 9, 2018, Diaz filed a notice of appeal to the Pennsylvania Superior Court
from this court's order of October 11, 2018. On June 3, 2019, Diaz filed a Motion for Post-
Conviction Collateral Relief ("Motion"). Diaz's direct appeal was quashed on June 6, 2019.
Lara Hoffert, Esquire ("Attomey
("Attorney Hoffert") was appointed to represent Diaz on June 11, 2019, in
his PCRA matter. Attorney Hoffert was subsequently granted permission to withdraw her
appearance due to a conflict of interest and David Long, Esquire
Esquire ("Attorney Long"), was
appointed to represent Diaz. On October 22, 2019, Attorney Long filed an Amended PCRA
Petition ("Amended Petition") on behalf of Diaz. Diaz claimed within the Amended Petition that
his trial counsel, Jacob Gurwitz, Esquire ("Attomey
("Attorney Gurwitz"), was ineffective when he failed to
file a direct appeal. A hearing was held on December 3, 2019, to address Diaz's claims. At that
time, both Diaz and Attorney Gurwitz presented testimony.
On January 29, 2020, this court entered an order dismissing the Motion and Amended
Petition. Diaz filed a pro se Notice of Appeal on February 12, 2020. On November 30, 2020,
the Pennsylvania Superior Court reversed this Court's order denying PCRA relief and held that
Diaz was entitled to the reinstatement of munc pro tuunc.
post·sentence and direct appeal rights nnc
of his post-sentence tunc.
On December 8, 2020, this Court entered an order reinstating those rights. On December I8,
2020, Diaz filed a post-sentence motion which was denied by this Court on December 22, 2020.
The Commonwealth and Diaz,
• Te and through counsel, agreed tthat
Diaz, by and I7, Delivery of a
hat the sentences on Count 17,
Controlled Substance -- Methamphetamine, and Count 19, I9, Delivery of a Controlled Substance -- Met[amphetamine,
-Methamphetamine,
were illegal. At sentencing, Diaz had two prior convictions for possession with intent was sentenced
intent to deliver and was
years on both counts. However.the statutory maximum on these offenses was 20 years and
to serve 90 months to 30 vears and
not 30 years. See 35P.S.
35 PS. $780-113(f(1.1) iiaxirum sentenck
$780-113((1.1) (ten-year statutory ii~axirum for'the delivery of
sentendl for'the
methamphetamine); 35 P.S. $780-115(a) ([a]ny person convicted of a second or subsequent offense under clause
35P.S.
off~bse under any statute 3f
(30) of subsection (a) of section 13 of this actor of a similar off~ise pf the United States or of any
state may be imprisoned for a t the term otherwise authorized[.]). Therefore, this count reduced the
e up to twice the
term
rm
months,' to 30 years down to 90 months to 20
term of Diaz's sentences on those counts from 90 months '
20 years.
years
2
Diaz subsequently filed a supplemental post-sentence motion which was denied on February 16,
2021.
On March22, 2021, Diaz filed an untimely notice of appeal to the Pennsylvania Superior
Court. On March 24, 2021, this Court ordered Diaz to file a concise statement of matters
complained of on appeal within 21 days from the date of the order's entry on the docket, On
April 26, 2021, Diaz filed his statement of errors. On April 26, 2021, Diaz filed a request to
extend the deadline to file a statement of errors acknowledging that his concise statement was
untimely. Alternatively, Diaz requested that this Court accept his statement of errors rune pro
tune. On April 27, 2021, this Court granted Diaz's request and extended the filing deadline for
his concise statement by 21 days.
DISCUSSION
Statement of Facts
Due to the extensive nature of the drug investigation in this case, this Court has
summarized the relevant events and listed them in chronological order. Some of those events
include text messages and telephone calls. During trial, the Commonwealth called Trooper Jay
Lownsbery ("Trooper Lownsbery") of the Pennsylvania State Police to testify. Id. at 410. He
was qualified as an expert in the field of narcotics trafficking and drug culture in Berks County.
Id. at 414-415. The Commonwealth played the audio recordings, presented text conversations
from their wiretap investigation and displayed a visual transcription of the calls and messages for
the jury. Id. at 417. All calls and texts listed below were interpreted by Trooper Lownsbery.
In 2017, members of the Pennsylvania State Police were conducting a drug investigation
in Berks County when they arrested an individual in possession of a large amount of
methamphetamine. Notes of Testimony, Jury Trial, June 5-7, 2021 (N,T") at 110-111. That
3
I
individual cooperated with law enforcement and became a confidential informant ("Confidential
Informant") used to further that investigation. Id. at I11, The Confidential Informant introduced
undercover officers to other individuals identified as targets of the investigation. Id. at 112. One
of those officers, Scott Fidler of the Pennsylvania State Police ("Corporal Fidler"), acting in an
undercover capacity, used the Confidential Informant for a period of time before transitioning to
direct contact with those targets. Id. at 112-113.
In April of2017, Corpora! Fidler came into contact with one of those targets, an
individual named Luis Irizary ("Irizarry"). Id. at 113. Corporal Fidler obtained Irizarry's phone
number during their interactions and Irizarry told Corporal Fidler that he could contact him if he
needed something. Id. at 114. As a result, Corporal Fidler began buying methamphetamine
directly from Irizarry. Id. The quantity of methamphetamine being purchased exceeded the
amount typically acquired for personal use. Id, Corporal Fidler informed Irizary that he was a
middleman trafficker trying to make money throughout the state. Id.
On June 1, 2017, at 6:39 p.m., Irizarry used telephone number 484-336-0442 to call Diaz
at 484-599-0187. Id. at 418. Trooper Lownsbery testified that this was a conversation where
Diaz stated that he had sold off product and he was looking for more crack cocaine to sell. Id. at
419.
On June 1, 2017, Corporal Fidler, acting in an undercover capacity, sent a text message to
Irizarry at 484-336-0442 asking him if "he was going to be good." Id. at 115, 117. Corporal
Fidler testified that this meant he was asking Irizany if he had the drugs. Id.
On June 2, 2017, Corporal Fidler texted Irizany letting him know he was on his way to
Reading, Pennsylvania, and had money to buy cocaine from him. Id. at 115, 123-124, 422,
Irizarry called Corporal Fidler at 2:33 p.m. and directed him to the Speedway off of Lancaster
4
Avenue. Id. at 115, 116, 124, 422-423. At2:41
At2:41 p.m, Diaz called Irizany seeking to purchase 3
grams of cocaine. Id. at 423. Irizarry then
then told Diaz that he just added 5 grams of baking soda to
20 grams of cocaine to sell to Corporal Fidler. Id. at 423.
On June 2, 2017, Corporal Fidler was acting in an undercover capacity and accompanied
by surveillance units. Id. at 116. One of those units observed a Nissan Armada depart from the
area near Irizany 's residence at the intersection of Birch and Green Street. Id. at 168-169.
near Irizanry's
Corporal Fidler, dressed in civilian attire, arrived at the Speedway and waited several minutes in
the parking lot before Irizarry arrived. Id. at 116, 117, 147, Irizarry and another male individual
147. Irizany
Arnada"). Id. at 147, 148-149, 167,
arrived in a Nissan Amada, tag #ISM9768 ("Nissan Amada"). 167.
Irizarry exited the Nissan Amada and entered Corporal Fidler's vehicle where Corpora!
Corporal Fidler
purchased 25 grams of cocaine from Irizary
Irizany for S1,000.00. Id. at 117-119. Irizarry then exited
Corporal Fidler's vehicle and walked to the passenger side of a Nissan Armada. Id. at 119-120,
148. Corporal Fidler exited the parking lot and noticed the Nissan Armada behind him. Id.
Id, at
120, Corporal Fidler observed that Diaz was the operator of the Nissan Armada. Id. at 120, 142.
Corporal Fidler provided the cocaine to another trooper
trooper which concluded his role in the
hat day. Id. at 121.
investigation on tthat
On June 2, 2017, at 9:10 p.m., Irizarry contacted Diaz
June2, Diaz and told him that he had cooked up
3
13 grams of cocaine into
into crackfor
for someone as Diaz's request. Id. at 424. Irizary told Diaz that
he was going to deliver it to him and asked Diaz for some marijuana. Id. at 424-425, Diaz
informed Irizany and only had lower quality product. Id. at
Irizary that he was out of his best marijuana and at
425.
On June 5, 2017, at 1H:00
11:00 a.m., Diaz called Irizarry to let him know that the Percocets
arrived. Id. at 426. They discussed how the pill's consistency was a little bit harder. Id.
had arived.
5
Trooper Lownsbery explained that users will crush the pills into a fine powder and it is more
difficult with a harder pill. Id. There was also some confusion during the conversation due to
Diaz's belief that Irizarry was going to be obtaining Percocet from his supplier even though
Irizarry stated that he already had the Percocets in his possession. Id. at 426-427. Trooper
Lownsbery described the relationship between Irizarry and Diaz as a limited partnership" where
they each had their own controlled substances that they assisted one another in acquiring and
delivering. Id. at 427.
On June 5, 2017, at 11.39 a.m., Diaz called Irizarry to pick up the Percocets. Id. at 428.
Diaz was calling to let Irizarry know that he was close by and coming to the house to get them.
Id. They agreed to meet at Diaz's garage at Sauls Court. Id.
On June 5, 2017, Trooper Teresa Cloman of the Pennsylvania State Police ("Trooper
Cloman") was advised that Irizarry was going to meet with a blackmale at Mulberry Street near
Walnut Street. Id, at 151. She set up surveillance nearby at 10" Street and Elm Street in
Reading near Saul's Court. Id. While conducting surveillance, Trooper Cloman observed
Irizarry's vehicle exit Saul's Court. Id. at 152. It was fllowed
o by a Nissan Armada. Id. They
were in tandem together. Id. at 159. Trooper Cloman was part of the surveillance team on June
2, 2017, and recognized this Nissan Armada as the same Nissan Armada that was present at the
drug transaction on June 2, 2017. Id. Trooper Cloman identified Diaz as the operator of the
Nissan Amada on June 5, 2017. Id. at 152-153, 159.
Irizarry and Diaz traveled together to New York in the late aftermoon on June 5, 2017. Id.
at 428. While in New York, Diaz sent a text message to Irizany letting him know he would be
o I take it." Id. at 428. Irizarry then responded
out shortly and he was "checking this bud befre
"ok." I.
6
On June 6, 2017, at 1237a.m, a text message was sent to Irizany from an unknown
individual (#904-860-5319)asking if Irizarry was around because he needed to see him. Id. at
429-430. Irizarry responded that he wasn't in town yet. Id. at 430. In response, the unknown
individual asked how long and if Irizarry's partner was around. Id. Irizary texted "he is with
me." Id, Irizarry instructed the unknown individual to come to Birch and Green with a pack of
cigars. Id. The cigars would be used to smoke marijuana. Id. at 431. The unknown individual
asked if Irizarry had the same stuff to which Irizary responded "yeah." Id. The unknown
individual asked Irizany fr a 16" «which is known to be a small amount of marijuana for
personal use, Id, at 430-431. The unknown individual asked Irizary how long and told him he
needed a "hundo" which meant that he wanted $100.00 of crack cocaine. Id, at 430-431.
Irizarry and the unknown individual exchanged a few more texts where Irizany explained that he
was on his way from New York. Id. at 430. Trooper Lownsbery believed that this unknown
individual was the person who supplied the Percocets to Irizarry and was now looking to obtain
controlled substances. Id. at 430-431.
In the evening'morning hours of June 5" and June 6", surveillance units observed the
Nissan Armada traveling on Interstate 78 returning from the New York area. Id. at 178-179,
198, 356-357. Irizary was present in the vehicle based on cell phone pings from his phone, Id.
at 180, 188-189, 357. The Nissan Armada entered the city of Reading and parked in the 700
block of Washington Street in the early morning hours of June 6, 2017. Id. at 181, 193, 199,
357. Diaz was observed exiting the driver's side of the Nissan Armada and retrieving a black
duffel bag from the Nissan Armada before entering the address at 735 Washington Street. Id. at
193, 199. Another individual also exited the Nissan Amada and stood outside. Id. at 199. Diaz
exited 735 Washington Street 10 minutes later without the bag and drove away in the Nissan
7
Annada with the other individual. Id. at 199-200. The Nissan Annada was then observed at the
intersection of Birch Street and Greet Street approximately 20 minutes later. Id. at 181, 200-201.
The Nissan Armada then continued to Cotton Street and Chapel Terrace where the other
individual who had previously stood outside of the Nissan Armada exited the vehicle and walked
on Chapel Terrace. Id. at 201
On June 6, 2017, at 4:.09 p.m., Irizary sent out 27 text messages all to different numbers
with the word "Fire." Id. at 431. These 27 separate numbers were Irizarry's customers, Id,
This text meant that Irizarry had freshly cooked cocaine into crack and it was available and ready
for purchase. Id.
On June 6, 2017, Corporal Fidler, acting in an undercover capacity, sent a text message to
Irizarry requesting to obtain some crystal methamphetamine. Id at 126. At that time, Corporal
Fidler was purchasing + ounces at a time fr $3,000.00. Id.
On June 7, 2017, a text conversation occurred between Corporal Fidler and Irizarry
where Corporal Fidler let Irizarry know that he was looking to come down and purchase more
methamphetamine around 6:00 p.m. Id. at 432-433. They agreed that Corporal Fidler would
buy the usual amount of 4 ounces. Id. at 433.
On June 7, 2017, after talking with Corporal Fidler, Irizarry called Rivera to place an
order for 4 ounces of methamphetamine. Id. at 434. They agreed to meet at the Saul's Court
parking lot. Id. Rivera provided Irizarry with 8 ounces of methamphetamine when they met. Id.
at 437.
On June 7, 2017, at 6:15 p.m., Corporal Fidler placed a call to Irizany to let him know he
was on his way. Id. at 435. They arranged to meet at a loeal 7-Eleven. Id. at 126, 435.' At6:24
During his direct examination of Corporal Fidler, Assistant District Attorney Skayhan finished discussing the
events of June 2,2017, and told Corporal Fidler that he wanted "t move onto another date." NT. at 126. The
8
p.m., Corporal Fidler arrived at the 7-Eleven and received a phone call from Irizary. Id. at 126,
437. Irizarry asked Corporal Fidler if he wanted an additional 4 ounces of methamphetamine
that he could pay back later. Id. at 126-127, 130, 437. They discussed the quality of the crystal
methamphetamine and Irizarry directed Corporal Fidler to an area on Mercer Street
approximately 3 blocks away. Id, at 127, 437.438. Corporal Fidler was alone in his vehicle but
there were surveillance units present. Id. Trooper Cloman was conducting surveillance on that
day and observed the Nissan Armada in the area of the 7-Eleven. Id. at 154-155, Corporal
Fidler traveled to an apartment complex onMercer Street where he met with Irizarry. Id, at 128.
Irizarry arrived on foot. Id. at 130. Corporal Fidler did not see how he was transported to that
location but surveillance units observed that Diaz drove the Nissan Armada to and from the drug
transaction. Id. at 130, 202, Irizarry got into Corporal Fidler's vehicle and provided him with a
bag of crystal methamphetamine in exchange for S3,000.00. Id. at 128, 130. They discussed the
quality of the product and Irizarry directed Corporal Fidler out of the complex where he dropped
him off. Id. As Irizarry exited the vehicle, Corporal Fidler asked Irizarry if he brought him more
cocaine. Id. Irizarry then agreed to provide Corporal Fidler a free 8 ball" of cocaine as they
had previously had a text fight about the poor quality of the cocaine Irizanry had sold to Corporal
Fidler on June2". Id, at 128-129. Irizary left on foot. Id. at 130. Corpora! Fidler provided the
metharnphetamine to another trooper which concluded his role in the investigation on that day.
Id. at 130.
transcript identifies the other date as June 2, 2017, on line 6 and line 16 on page 126. Id. However, on pages 129 to
130 of the transcript, Assistant District Atomey Skayhan identifies this other date as June 7 and not June 2r',
Corporal Fidler also references the June 7 date on page 139, Trooper Cloman references June 7 on page 153.
Based on the testimony presented, the other day was June 7 and not June 2" as identified in the transcript on page
126.
9
On June 7, at 7.06 p.m., Rivera called Irizarry to let him know that the transaction with
Corporal Fidler had been completed and he had the money so they agreed to meet up at the
Saul's Count parking lot. Id. at 438.
On June 8, 2017, at 7:33 p.m., Irizary called Diaz asking him for two Percocets for his
barber. Id. at 439.
On June 8, 2017, surveillance units observed Irizarry's vehicle outside of 735
Washington Street. Id, at 218-219. Diaz was present and talking on his cell phone outside. Id
at 220. Irizarry was also there and talking on his cell phone, Id. Diaz entered into the driver's
side of his Nissan Armada. Id. at.221. Irizarry and a young boy who was with Irizarry entered
the Nissan Armada and they drove away. Id, at 221, 234.
On June 9, 2017, at 5:41 p.m., Diaz called Irizarry asking him to prepare some crack
cocaine for him. Id. at 440. Irizarry said that he was available and Diaz agreed to go to
Irizarry's house. Id. Irizarry asked Diaz to bring marijuana over but Diaz informed him that he
ran out of some of it, Id. Irizarry then asked Diaz for fresh baking soda to prepare crack
cocaine. Id.
On June 9, 2017, at 5:5l pm., Diaz called Irizarry asking if he needed a scale to weigh
the product. Id. at 440-441. Irizarry told Diaz that he had a scale and that they were just waiting
on Diaz to arrive with the baking soda so they could prepare the crack cocaine. Id. at 441. Diaz
said that he was on his way. Id.
On June 10, 2017, at 10:15 p.m., Irizarry called Diaz on his business phone instead of his
personal phone. Id, at 441-442. They discussed how Irizarry didn't call on his usual phone and
then talked about hanging out later. Id, at 441-442.
10
On June 12, 2017, Irizarry sent Diaz a text message placing an order for marijuana. Id. at
442, On June 12, 2017, Trooper Cloman was informed of a drug transaction that was scheduled
to occur between Diaz and Irizarry in the area of 1233 Green Street. Id. at 155. Irizarry resided
in an apartment near this area at the intersection of Birch Street and Green Street. Id. at 156.
While conducting surveillance, Trooper Cloman observed the Nissan Armada park on Birch
Street and beep its horn. Id. Afer receiving no response, Trooper Cloman observed Diaz exit
the Nissan Amada and walk to the corner of 1233 Green Street and knock on the apartment's
door. Il. Irizarry opened the door and Diaz entered the apartment. Id. After a short time, both
Diaz and Irizarry exited the apartment. Id, Diaz departed in the Nissan Armada and Irizary
returned to his apartment. Id.
On June 19, 2017, Corporal Fidler, acting in an undercover capacity, engaged in text
conversations with Irizarry about purchasing methamphetamine. Id. at 13I. Irizarry directed
Corporal Fidler to Pendora Park in Reading and they met at the basketball courts, Id. at 131-132.
Corporal Fidler observed that Irizarry was in the same Nissan Armada that he saw on June 2
Id. at 132. Irizarry exited the Nissan Armada and entered Corporal Fidler's vehicle. Id, Diaz
was also present in the Nissan Armada and seated in the driver's seat, Id. at 132, 142. After
Irizarry entered Corporal Fidler's vehicle, he provided Corporal Fidler with a bag of crystal
meth.amphetamine. Id. at 133. Corporal Fidler complained about the quality of the product and,
in response, Irizarry produced an additional bag of methamphetamine of lesser quality and
offered it to Corporal Fidler for a lower price of $2,800.00 that he could pay back later. Id. at
133-134. Corporal Fidler then talked with Irizarry about purchasing a pound of
Id.
methamphetamine. Irizarry Corporal that it $10,000.00 for
was a
at I 34. infonned Fidler
pound of methamphetamine. Id. Corporal Fidler and Irizarry agreed that Corporal Fidler could
11
pay $7,000.00 up front and pay off the remaining $3,000.00 later. Id. Irizarry exited Corporal
Fidler's vehicle and returned to the Nissan Armada. Id.
On June 20, 2017, aa confidential informant met with Diaz at Saul's Court off of Mulberry
arived in a Nissan Armada. Id. The confidential
Street and Elm Street. Id. at 392. Diaz arrived
informant purchased a quantity of methamphetamine from Diaz which was then turned over to
law enforcement. Id. at 392,
392, 395-396. Irizany was not involved in that transaction. Id. at 394.
p.mn., Roberto Ortiz ("Ortiz")
On June 25, 2017, at 2:42 pm., Irizary and asked him
(Ortiz") contacted Irizany
for powdered cocaine. Id. at 44.2 Irizarry informed Ortiz that he did not have any and directed
him to Diaz who knew someone who could supply powdered cocaine. Id. at 443. They
discussed the two phone numbers used by Diaz in order to contact him. Id.
text conversation with Irizary
On June 27, 2017, Robert Undheim ("Undheim") had a text Irizany
requesting a $50.00 package of crack cocaine and agreeing to meet at Wawa. Id, at 445-446. On
June 27, 2017, the Pennsylvania State Police were notified of a potential drug deal that was to
take place in the Wawa parking lot off Route 6l and Reading Crest Boulevard. Id. at 183, 203.
On that date, Trooper Clint Long observed an unknown male, later identified as Undheim, in
front of the Wawa at that location. Id. at 183. Approximately 5 minutes later,
later, Irizarry and Diaz
arrived in a Nissan Armada. Id. at 184, 203-205. Undheim entered the rear seat on the driver's
side of the Nissan Armada. Id. at 184, 205. After a few minutes, Undheim exited the Nissan
Amada and it left the parking lot. Id. at 185.
On June 28, 2017, at 5:47 p.m., Irizarry called Corporal Fidler to let him know that his
phone died. Id. at 447. Corporal Fidler told him that he was on his way to Reading and he had
Irizarry's money plus an additional $3,000.00. Id. at 447-448. They agreed to meet at the 7-
Eleven. Id. at 448.
12
On June 28, 2017, at 5:49 p.m., Irizarry called Rivera to place an order for
methamphetamine to deliver to Corporal Fidler. Id. at 448. They agreed to meet at Saul's Court.
Id. at 449.
On June 28, 2017, at 5:50 p.m., Irizany called Diaz and talked to him about buying a
whole pound of methamphetamine from Rivera. Id. at 450. Irizarry told Diaz that Corporal
Fidler had the $2,800.00 owed from their previous deal plus another $3,000.00 and that this
money would allow him to buy more methamphetamine to sell to other people. Id. at 450.
Irizarry also talked about how he was concerned that all of his money was "out on the street" and
he didn't have any money available to buy cocaine to make crack. Id. at 450. Irizarry informed
Diaz that he was meeting Rivera at the Saul's Court parking lot. Id. at 451. Diaz offered to call
Rivera and tell him that Irizarry was good for the money and would repay him if he let him have
the whole pound, Id. at 451.
On June 29, 2017, a text conversation occurred between Irizarry and Martinez where
Irizarry asked Diaz how much he owed him for the marijuana, Id. at 452. They discussed dollar
amounts and then agreed to settle the amount at the end of the conversation. Id.
On July 9, 2017, at 4:20 p.m., Irizarry called Diaz asking if he was still dealing in ounces
of marijuana because someone was looking to buy an ounce. Id. at 453. Diaz replied that he was
not and is now only dealing in 1/8" ounce increments. Id. Irizarry told Diaz that he had an
ounce of good marijuana and didn't want to sell to this person but did want to keep him happy.
Id. at 453-454. Irizarry and Diaz then discussed numbers as Irizary was figuring out how many
eighth ounces of marijuana he would need to take care of the people he was supplying. Id. at
454, Irizarry came up with a number and Diaz told Irizarry that he needed to check with
someone to see if all of the marijuana is available. Id, at 454
13
On July 9, 2017, at 4:28 p.m., Diaz called Irizarry directing him to go to the stash
location at 735 Washington Street. Id, at 454-455
On July 11, 2017, at 3:19 p.m., Rivera called Diaz but Diaz didn't recognize his voice.
Id. at 465-466. Rivera identified himself by his street name to Diaz and put Irizarry on the
phone. Id. at 466. During the conversation, Rivera offered Irizarry 6 ounces of
methamphetamine at a discounted price. Id. Irizarry told him that he would think about it and
call him back to let him know if he would take it. Id.
On July 12, 2017, at 2:32 p.m., Irizarry called Diaz about the 6 ounces of
methamphetarnine he obtained from Rivera. Id. at 467. Irizarry asked Diaz ifhe would reach
out to another individual to see if he would be interested in buying methamphetamine at $400.00
per ounce, Id. at 467. Irizarry told Diaz it was good quality and explained how he could sell it to
make a profit. Id. He gave Diaz a hard time about how Diaz had never given him product of this
high quality. Id. Diaz told Irizarry that he was going to check with his guy and get back to him
about it. Id.
On July 12, 2017, at 2136 p.m,, Diaz called Irizarry and told him that a guy was over at
735 Washington Street and expecting Irizany to stop by, Id. at 468. Irizary sent Diaz a text
message 7 minutes later letting him know he was at Washington Street, Id.
On July 12, 2017, at 10:55 pm., Irizarry sent a text message out to Mike Rowe saying
"New Fire" indicating that he had new crack cocaine available for sale. Id, at 468.
On July 14, 2017. Mike Rowe responded to Irizarry asking if he could stop by his house.
Id. Irizarry agreed. Id.
On July 14, 2017, at 6:28 p.m., Irizany calledMike Rowe ("Rowe") to confirm his order
of S 100.00 worth of crack cocaine. Id. at 469. Irizary confirmed that he would bring it over and
14
Rowe asked about the quality of the product, Id. Irizary assured Rowe that it was good quality,
they agreed on a price and that Irizarry would deliver it. Id. Later that day, surveillance units
observed Diaz and Irizarry arrive at the apartment complex on State Hill Road in a Nissan
Armada. Id. at 206, 469. Irizarry exited the passenger side of the Nissan Annada and entered
into one of the apartments. Id. He was inside for approximately one minute before exiting the
apartment and leaving in the Nissan Armada. Id. Diaz was always the driver of the Nissan
Annada. Id. at 210.
On July 16, 2017,at 12:22 p.m., Irizany contacted Diaz to try to get into touch with
another individual, Josh Manon. Id. at 469-470. Irizarry was selling marijuana with him and
was one of the few people in the area who had it. Id, at 470, Irizarry did meet with Josh Manon
on two occasions after this conversation to purchase marijuana oil. Id.
On July 18, 2017, at 3:36 p.m., Diaz called Irizarry to purchase methamphetamine for his
own personal use. Id, at 47L. They agree on a price 0f$100.00 for an 8-ball of
methamphetamine. Id. at 4 7 l.
On July 18, 2017, at 3:48 p.m., Diaz called Irizarry asking how soon he can have it. Id. at
471. They agreed to meet in 5 minutes at the Saul's Court garage. Id.
On July 18, 2017, at 9:58 p.m., Diaz called Irizarry about getting 10 or 15 grams of crack
cocaine for another person. Id, at 472. Irizarry said he had 15 grams of powdered cocaine that
he hadn't put together yet. Id. Diaz left it up to Irizanry t decide whether he wanted to do it and
Irizarry said that he would since he was out of money and wanted to buy marijuana. Id, Irizarry
told Diaz that the cost was $38.00 per gram. Id,
On July 18, 2017, at 10:02 p.m., Diaz called Irizarry saying that this other individual
wanted IO grams of crack cocaine at the agreed price of $38.00 per gram. Id. at 473. Irizarry
15
became upset because that would leave him with 5 grams which isn't very much for sale. Id.
Diaz laughed and told Irizarry to just bag it up because he didn't care. Id, Irizarry told Diaz that
the crack cocaine was almost done. Id.
On July 21, 2017, at 10:04 p.m., Diaz called Irizarry and asked him to call another
marijuana dealer to find out how much it would cost to get one ounce. Id. at 4 73. Diaz had an
individual who was seeking to buy one ounce of marijuana but, since it didn't make sense for
Diaz, a marijuana dealer, to call another marijuana dealer to buy an ounce, he asked Irizarry to
make the call. Id. Irizarry agreed to call to find out the price. Id. at 472-473.
On July 21, 2017, at 12.52 p.m., Diaz called Irizarry to tell him not to call Rivera until
they were able to talk. id. at 474. Irizarry agreed and they decided that they were going to meet
at Saul's Court. Id.
On July 24, 2017, there was a text conversation between DeanMoyer (Moyer") and
Irizarry. Id. at 474. In that conversation, Moyer asked Irizarry for crack cocaine in $20.00
amounts. Id. at 475. rizany said he is only selling it in $50.00 increments. Id. Moyer told
Irizarry he would buy S50.00 in crack cocaine. Id. Irizarry and Moyer agreed to meet at the
laundromat on Hampden Boulevard in Reading. Id, Dean Moyer said he would be on a bike.
Id.
On July 24, 2017, law enforcement received information that there was going to be a
meet-up happening at the 2300 block of Hampden Boulevard across from a laundromat. Id. at
227. They were told that the suspect would be arriving on a motorcycle. Id. at 228. An
individual arrived on a motorcycle at that location and the Nissan Armada arrived approximately
10 minutes later. Id. at 228. The individual on the motorcycle approached the Nissan Armada's
passenger window and remained there for a few minutes interacting with an individual believed
16
to be Irizarry. Id. at 228-230. After their interaction, both the Nissan Armada and motorcycle
left that location. Id. at 230:
On August 2, 2017, a search warrant was executed by law enforcement at 1233 Green
Street, Reading, Pennsylvania, which was identified Irizany's residence. Id, at 242-243. Irizarry
was present with his girlfriend and two children. Id. at 243-244, Three phones were located
during the search, one of which ended with the numbers 0442. Id. at 244. In addition to the
phones, law enforcement discovered controlled substances, S1,800.00 in US. currency and a
handgun with an obliterated serial number. Id. at 244-243. Irizarry was taken into custody. Id.
at 245.
A second search warrant was also executed at 735 Washington Street, Reading,
Pennsylvania. Id, at 250-251, 264. There were no individuals present when the warrant was
executed. Id. at 252. The apartment had very little furniture and no decorations. Id. at 252-253,
Law enforcement discovered packaging material, boxes of plastic bags, baking soda, acetone,
creatine, a digital scale, a coffee grinder and a vacuum sealer in the kitchen. Id. at253, 346.
There was also a duffel bag containing packaging material, another digital scale, suboxone, some
marijuana residue and an empty heroin packet. Id. at 253, 267. No food was located at that
location. Id. at 256.
At trial, the Commonwealth called Nelson Rivera ("Rivera") to testify against Diaz. Id.
at 290-331, Rivera was facing criminal charges at the time of his testimony. Id. at 290,317.
Rivera testified that he sold methamphetamine to Irizarry twice in June and July of2017. Id. at
298. Diaz was always present during the drug sales. Id. Between January 2017 and August
2017, Rivera sold hundreds of pounds of methamphetamine in and around Reading. Id. at 321
7
During the first of the two drug transact-ions, Irizarry called Rivera and told him he
needed a half pound of methamphetamine. Id, at 300. They met on Cotton Street for the drug
transaction. Id. Rivera walked up to a vehicle he described as a "truck" and saw Diaz in the
driver's side. /d. at 300, 303, Diaz informed Rivera that Irizarry was "inside the house" and
would be out shortly. Id. at 300, 303. Irizarry came out and Rivera gave him a half pound of
methamphetamine. Id. They agreed that Irizarry could pay Rivera after he delivered the drugs to
his customers. Id, At that time, a phone call was received from another individual alerting them
to the possible presence of law enforcement. Id. After making an attempt to determine whether
the police were actually present, Rivera later met with Irizary and Diaz at a separate location on
Mineral Spring Road and received payment for the half pound of methamphetamine. Id. at 300-
302, 327
The second drug transaction between Irizarry and Rivera was initiated when irizanry
called Rivera and asked him to meet on Mulberry Street, Id. at 303. They met in a parking lot
owned by Diaz. Id. Once they arrived, Rivera said that he had a little over a half pound of
methamphetamine and needed a scale. Id, at 303-304. Diaz suggested that they go to his place
on Washington Street to open up the package. Id, at 304. They traveled to Washington Street in
a "truck" and entered a house at 735 Washington Street, Id. at 304, 325-326. Diaz and Rivera
went inside with a third individual identified by Rivera as a "crackhead." Id. at 304, 390. Diaz
retrieved a scale and vacuum sea. Id. Rivera cut open his bag and weighed the drugs on Diaz's
scale. Id, Rivera resealed his bag and they returned to their vehicle. Id. Diaz, Rivera and
Irizarry then traveled to an apartment complex near a 7-Eleven where Irizarry sold
methamphetamine for S3,000.00 to an individual Rivera subsequently learned was Corporal
Fidler acting in an undercover capacity. Id, at 304-306.
18
During the timeframe of June and July of2017, Rivera was selling methamphetamine to
many pcopie other than Irizarry. Id. at 306. Rivera testified to his familiarity with how certain
drugs are described by buyers and sellers of narcotics. Id. at 306-309, He also explained how
dealers often have multiple phones that are used for certain individuals or groups of people. Id.
at 309. Rivera testified that he had a few stash houses and didn't keep his drugs at his residence.
Id. at 310. Rivera stated that he was receiving drugs from his supplier and then distributing them
to other individuals throughout Reading. Id. at 314. There were between 40 and 47 people
involved in this drug distribution network, Id. at 314, 315, 355.
At trial, the Commonwealth presented testimony from Detective Sergeant Pasquale
Leporace of the Berks County District Attorney's Office ("Detective Leporace"). Id. at 336-
398. Detective Leporace was qualified as an expert in drug and narcotics law enforcement. Id.
at 340. Detective Leporace testified that he believed the address of 735 Washington Street was a
small to midlevel processing center used to break down bulk amounts of drugs into street and
midlevel quantities and as a possible stash location. Id. at 343-349, He also described the
wiretap investigation into this drug organization. Id. at 350-363. Detective Leporace stated that
law enforcement identified Irizarry as a drug dealer with two suppliers, Nelson Rivera and Angel
Concepcion. Id. at 354-355. Detective Leporace testified that Diaz utilized a phone number
ending in 0187 to conduct drug transactions. Id. at 356, 359, 375-376. Whenever that number
contacted Irizarry to schedule a meeting, surveillance units observed that it was only Diaz who
would show up to meet with Irizarry. Id. Also, when surveillance units observed Diaz with
Irizarry, there was very little communication between them. Id. The wiretap investigation
involved 11 phone numbers over the course of 60 days. Id. at 355
19
Suffieieney of the Evidence - Generally
Diaz claims that the evidence was insufficient to sustain his convictions for corrupt
organizations, I8 Pa.C.S.A. $911(b)(2), corrupt organizations, 18 Pa.C.S.A.,, $911(b)(3),
criminal use of communication facility, 18 Pa.C.S.A. $7512(a), possession of a controlled
substance with intent to deliver, 35 P.S. $780-113(a)(30) and conspiracy to commit possession
with intent to deliver a controlled substance, 18Pa.C.S.A. 8903.
When reviewing a challenge to the sufficiency of the evidence supporting a defendant's
conviction, an appellate court is required to evaluate the record "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. Rahman, 75 A.3d 497, 500 (Pa. Super. 2013) (citation
omitted).
The test for determining the sufficiency of the evidence is whether, viewing the evidence
in the light most favorable to the Commonwealth as the verdict winner and drawing all
proper inferences favorable to the Commonwealth, the jury could have determined that
all of the elements of the crime have been established beyond a reasonable doubt. The
Commonwealth may sustain its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial evidence. The facts and
circumstances established by the Commonwealth need not be absolutely incompatible
with the defendant's innocence, but the question of any doubt is for the jury unless the
evidence is so weak and inconclusive that, as a matter of law, no probability of fact can
be drawn from the combined circumstances.
Commonwealth v. Smith, 848 A.24 973, 977 (Pa. Super. 2004) (citation omitted).
20
20
An appellate court "may not substitute [its] judgment for that of the fact finder; thus, so long as
the evidence adduced, accepted in the light most favorable to the Commonwealth, demonstrates
the respective elements of a defendant's crimes beyond a reasonable doubt, the appellant's
convictions will be upheld." Rahman, 75 A.3d at 501.
Sufficiency of the Evidence-Corrupt Organizations
Diaz argues that the evidence was insufficient to sustain his convictions on two counts of
corrupt organizations.
The crime of corrupt organizations is defined, in relevant part, as follows:
$911 Corrupt organizations
(b) Prohibited activities.-
(2) It shall be unlawful for any person through a patter of racketeering activity to
acquire or maintain, directly or indirectly, any interest in or control of any
enterprise.
(3) It shall be unlawful for any person employed by or associated with any
enterprise to conduet or participate, directly or indirectly, in the conduct of such
enterprise's affairs through a pattern of racketeering activity.
18 Pa.C.S.A. $911(b)02), (3).
Section 911(h) of the Crimes Code defines a "patter of racketeering activity"as "a
course of conduct requiring two or more acts of racketeering activity[.] 18 Pa.C.S.A.
$911()(4). The definition of "racketeering activity" includes "[a]n offense indictable under
section 13 of the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance,
Drug, Device and Cosmetic Act (relating to the sale and dispensing of narcotic drugs)" and/'or
conspiracy to commit the same. 18 Pa.C.S.A. $911()((1(i), (ii). The term "enterprise" as
21
used in this section is defined as "any individual, partnership, corporation, association or other
legal entity, and any union or group of individuals associated in fact although not a legal entity,
engaged in commerce and includes legitimate as well as illegitimate entities and governmental
entities." 18 Pa.C.S.A. $911()63).
In this case, when viewing the evidence in the light most favorable to the
Commonwealth as the verdict winner and drawing all proper inferences favorable to the
Commonwealth, the jury could have determined that all of the elements of corrupt organizations
had been established beyond a reasonable doubt. The evidence demonstrated that Diaz, Rivera
and Irizarry were involved in a drug distribution network in Berks County. They engaged in a
"pattern of racketeering activity" by orchestrating multiple drug deliveries to Corporal Fidler and
other individuals during the course of law enforcement's investigation. Although Rivera only
sold to Irizarry twice, he testified that he was part of a larger drug distribution network.
Regarding Diaz and Irizarry, Trooper Lownsbery described the relationship between Irizarry and
Diaz as a "limited partnership" where they each had their own controlled substances that they
assisted each other in acquiring and delivering, Id., at 427. During a June 6 text conversation,
Irizarry even acknowledged this partnership when an unknown individual asked Irizarry if his
partner" was around and Irizarry responded by texting "he is with me." Id. at 430. The
intercepted telephone calls and text messages provided additional evidence of the relationship
between Rivera, Irizarry and Diaz as they processed orders and relied on each other to further
their shared goal of distributing narcotics in Berks County. Diaz was intimately involved in this
illegal enterprise. He is not entitled to relief.
22
Sufficienev of the Evidence -- Criminal Use of Communication Facility
Diaz next claims that the evidence was insufficient to sustain the verdict for criminal use
of a communication facility.
The crime of criminal use of a communication facility is defined as follows:
$7512 Criminal use of a communication facility
(a) Offense defined.--A person commits a felony of the third degree if that person uses a
communication facility to commit, cause or facilitate the commission or the attempt
thereof of any crime which constitutes a felony under this title or under the act of
April 14, 1972(P.L. 233, No. 64), known as The Controlled Substance, Drug, Device
and Cosmetic Act, Every instance where the communication facility is utilized
constitutes a separate offense under this section.
18Pa.C.S.A, $7512(a)
Section 7512(b) of the Crimes Code defines "communication facility" as "a public or
private instrumentality used or useful in the transmission of signs, signals, writing, images,
sounds, data or intelligence of any nature transmitted in whole or in part, including, but not
limited to, telephone, wire, radio, electromagnetic, photoelectronic or photo-optical systems or
the mail" I8Pa.C.S.A. $7512().
In this case, when viewing the evidence in the light most favorable to the Commonwealth
as the verdict winner and drawing all proper inferences favorable to the Commonwealth, the jury
could have detennined that all of the elements of criminal use of a communication facility had
been established beyond a reasonable doubt. The evidence showed that Diaz regularly used his
cell phone to communicate with Irizarry and other individuals to arrange for the acquisition and
distribution of narcotics in Berks County. Law enforcement's interception of Diaz's
23
communications established that he was engaging in drug distribution activity on an almost daily
basis. The details concerning the scheduling of drug deals contained in the text messages and
phone calls between Diaz and Irizarry were regularly corroborated by surveillance units. There
is no merit to Diaz's claim.
Sufficieney of the Evidence-- Conspiracy to Commit Possession with Intent to Deliver a
Controlled Substance and Possession with Intent to Deliver a Controlled Substance
Diaz claims that the evidence was insufficient to sustain the jury's verdict for possession
with intent to deliver a controlled substance and conspiracy to commit the same. This Court
notes that Diaz was convicted of 6 counts of delivery of a controlled substance, not possession
with intent to deliver a controlled substance. Additionally, Diaz was convicted of conspiracy to
commit delivery of methamphetamine and conspiracy to commit delivery of cocaine, not
conspiracy to commit possession with intent to deliver those substances.
The crime of delivery of a controlled substance is defined as follows:
$ 780-113. Prohibited acts; penalties
(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.
24
35P.$. $780-113(a)(30). The terms "deliver" or "delivery" are defined as "the actual,
constructive, or attempted transfer from one person to another of a controlled substance, other
drug, device or cosmetic whether or not there is an agency relationship." 35 P.S. $780-102.
The Crimes Code defines conspiracy as follows:
$903. Criminal conspiracy
(a) Definition of conspiracy.--A person is guilty of conspiraey with another person or
persons to commit a crime if with the intent of promoting or facilitating its commission
he:
(l) agrees with such other person or persons that they or one or more of therm will
engage in conduct which constitutes such crime or an attempt or solicitation to
commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of
such crime or of an attempt or solicitation to commit such crime.
18 Pa.CS.A. $903(a)
The essence of a criminal conspiracy is a common understanding, no matter how it came
into being, that a particular criminal objective be accomplished. Therefore, a conviction
for conspiracy requires proof of the existence of a shared criminal intent. An explicit or
formal agreement to commit crimes can seldom, if ever, be proved and it need not be, for
proof of a criminal partnership is aimost invariably extracted from the circumstances that
attend its activities. Thus, a conspiracy may be inferred where it is demonstrated that the
relation, conduct, or circumstances of the parties, and the overt acts of the co-conspirators
sufficiently prove the formation of a criminal confederation. The conduct of the parties
and the circumstances surrounding their conduct may create a web of evidence linking
the accused to the alleged conspiracy beyond a reasonable doubt. Even if the conspirator
did not act as a principal in committing the underlying crime, he is still criminally liable
for the actions of his co-conspirators in furtherance of the conspiracy.
Commonwealth v. McCall, 91 A.2d 992, 996-997 (Pa. Super. 2006) (citation omitted).
In this case, Diaz was charged with and convicted of conspiring to commit and
committing drug deliveries on six separate occasions: I) June 2, 2017; 2) June 7, 2017; 3) June
19, 2017; 4) June 27, 2017; 5) July 14, 2017; and July 24, 2017. At trial, there was no indication
that Diaz physically handed drugs to another person. However, as set forth above, Diaz was
clearly a co-conspirator with Irizarry and Rivera. The testimony established that Rivera supplied
Irizarry and Diaz with methamphetamine for distribution on two occasions and that he was part
of a large distribution network. Additionally, the evidence showed that Irizary and Diaz were
actively involved in the sale of methamphetamine and cocaine throughout Berks County which
included sales to Corporal Fidler. Even though Diaz did not act as a principal in committing the
drug deliveries, he is still criminally liable for the actions of Rivera and Irizarry in furtherance of
the conspiracy. SeeMcCall, supra. Therefore, when viewing the evidence in the light most
favorable to the Commonwealth as the verdict winner and drawing all proper inferences
favorable to the Commonwealth, the jury could have determined that all of the elements of
conspiracy to commit delivery of a controlled substance and delivery of a controlled substance
had been established beyond a reasonable doubt. Diaz's claim lacks merit.
Denial of Diaz's Objection to the Commonwealth's Pretrial Motion in Limine
Diaz claims that this Court erred and/or abused its discretion when it denied his
objections to the Commonwealth's pretrial motion in limine. Specifically, the Commonwealth
requested and this Court agreed to take judicial notice of Diaz's preliminary arraignment sheet
26
which included the phone numbers provided to theMagisterial District Judge by Diaz. NT. at9-
14.
Rule 201 of the Pennsylvania Rules of Evidence sets for the kind of facts that may be
judicially noticed as follows:
The court may judicially notice a fact that is not subject to reasonable dispute because it;
()is generally known within the trial court's territorial jurisdiction; or
(2) can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.
Pa.R.E. 201(b). [A] court in appropriate circumstances may take judicial notice of court
records." Conchado v. Com., Dept. of Transp., 941 A.2 792, 794 (Pa.CmwIth. 2008).
In this case, the Commonwealth stated that, during Diaz's arraignment, the Magisterial
District Judge and Diaz had a conversation where certain information was provided by Diaz and
included on the preliminary arraignment form by the Magisterial District Judge. N.T. at 11
During that conversation, the Commonwealth stated that two phone numbers were provided by
Diaz which were relevant to the investigation and included on that form. Id. at 9. The
Commonwealth introduced a copy of the preliminary arraignment form at trial as Exhibit 83. Id
at 484, 640. The for is titled as "Arraignment Information" and states that it "shall be
completed by the Magisterial District Judge." Id, at 640. Diaz's name is listed in the caption.
Id. There are two telephone numbers listed on the arraignment for: 484-599-0178 and 484-
782-4636. Id. The signature of the Magisterial District Judge is on the bottomof the document
indicating that the form was completed by the Magisterial District Judge. Id. The facts
contained on this form were not subject to reasonable dispute because they can be accurately and
readily determined from a source. the Magisterial District Judge, whose accuracy cannot
27
reasonably be questioned. Additionally, when the preliminary arraignment form was marked as
Exhibit 83, Diaz joined in the motion requesting that this Court take judicial notice of the
document. Id. at 336. Therefore, this Court did not err in taking judicial notice of the
preliminary arraignment form.
The Commonwealth's Obieetion to Diaz's Line of Questioning
Diaz claims that this Court erred and/or abused its discretion when it sustained the
Commonwealth's objection to his questions posed to Trooper Steven Nesbit ("Trooper Nesbit")
about conversations Trooper Cloman had with other troopers following her testimony. Diaz
alleged that, after Trooper Cloman finished testifying, she exited into a hallway with other
troopers and discussed her testimony with them. N.T. at 212-213, Diaz was concerned that
Trooper Nesbit's testimony was influenced by Trooper Cloman, Id. at 215.
At a party's request the court may order witnesses sequestered so that they cannot learn
of other witnesses' testimony." Pa.R.E. 615. "Once made, a sequestration order, like any order
of the court, should be diligently enforced." Commonwealth • Kaye, 335 A.2d 430, 433 (Pa
Super. 1975).
In this case, no sequestration order was requested by Diaz prior to Trooper Nesbit's
testimony. N.T. at 214. Therefore, the Commonwealth witnesses were not prohibited from
discussing their testimonies with each other. Furthermore, Trooper Nesbit testified that he
[didn't] know exactly what [Trooper Cloman] was talking about" and that he was reading his
reports to refresh his memory of what occurred when she was having conversation n the
hallway. N.T. at 212, Therefore, further questioning of Trooper Nesbit concerning Trooper
Cloman's conversations was irrelevant. See Commonwealth • Wynn, 850 A.2d 730, 733 (Pa.
Super. 2004) (citation omitted) ("Evidence is admissible if it is relevant-that is, if it tends to
28
establish a material fact, makes a fact at issue more or less probable, or supports a reasonable
inference supporting a material fact."). Diaz is not entitled to relief,
Testimony of Detective_Leporace
Diaz claims that this Court erred and/or abused its discretion when it overruled his
objection to the testimony of Detective Leporace. He argued that Detective Leporace was not
permitted to testify as both a fact witnesses regarding voice analysis and an expert in the area of
drug and narcotics law enforcement. NT. at 341.
The Rules of Evidence do not preclude a single witness from testifying, or offering
opinions, in the capacity as both a lay and an expert witness on matters that may embrace
the ultimate issues to be decided by the fact-finder. Pa.R.E. 702 permits an expert to
testify to scientific, technical or other specialized knowledge beyond that possessed by a
layperson. Pa.R.E. 701 permits a layperson to testify in the for of an opinion, however,
such testimony must be rationally based on that witness' perceptions. Thus, an expert
must have additional specialized knowledge in rendering an opinion; whereas, a lay
witness must form an opinion based on his or her rationally based perceptions. The Rules,
however, do mot specifically delineate that a witness must be only one or the other.
Instead, the witness' association to the evidence controls the scope of admissible evidence
that he or she may offer. Furthermore, Pa.R.E. 704 clearly permits both expert and lay
opinion testimony on issues that ultimately must be decided by the trier of fact, in this
case, the jury.
Commonwealth v. Clemat, 218 A.3d 944, 955-.956 (Pa. Super, 2019) (citation and alterations
omitted).
29
In this case, Detective Leporace was qualified and provided testimony as an expert in the
area of drug and narcotics law enforcement, NT. at 340, 342., As an expert, he testified that, in
his opinion, the 735 Washington Street address was a small to midlevel processing center used to
break down bulk amounts of drugs into street and midlevel quantities and as a possible stash
location, Id. at 343-349. He also described the wiretap investigation into this drug organization
and the steps taken to identify Diaz as a participant. ld, at 350-363. Detective Leporace testified
that he listened to samples of Diaz's voice and was able to identify his voice on phone calls
intercepted during the investigation. Id. at 359-360, Although he performed a dual function of
both expert and lay witness, "[t[he Rules of Evidence do not preclude a single witness from
testifying, or offering opinions, in the capacity as both a lay and an expert witness on matters that
may embrace the ultimate issues to be decided by the fact-finder." Clemat, supra. Therefore,
Detective Leporace was permitted to testify as both an expert and lay witness. Diaz is not
entitled to relief.
Diaz's Sentence
Diaz claims that this Court erred and/or abused its discretion when sentencing Diaz. Diaz
alleges that his sentence is manifestly excessive and unreasonable, this Court failed to consider
mitigating circumstances, this Court failed to balance the sentencing factors and failed to
adequately justify its sentence.
·When imposing a sentence, the sentencing court must consider the factors set out in 42
Pa.C.S. $ 9721(b), that is, the protection of the public, gravity of offense in relation to impact on
victim and community, and rehabilitative needs of the defendant. And, of course, the court must
consider the sentencing guidelines." Commonwealth • Caldwell, 117 A.3d 763, 768 (Pa. Super.
2015) (alterations and citation omitted).
30
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 • Fllin, 892
A.2d 843,847 (Pa. Super. 2006) (citation omitted)
"There is no absolute right to appeal when challenging the discretionary aspect of a
sentence. Rather, an appeal is permitted only after this Court determines that there is a
substantial question that the sentence was not appropriate under the sentencing code,"
Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (alterations, quotation marks
and citations omitted). "An appellant making an excessiveness claim raises a substantial
question when he sufficiently articulates the manner in which the sentence violates either a
specific provision of the sentencing scheme set forth in the Sentencing Code or a particular
fundamental norm underlying the sentencing process." Commonwealth v. Raven, 97 A.3d 1244,
1253 (Pa. Super. 2014) (citation and quotation marks omitted).
A sentencing court has discretion to impose its sentence concurrently or consecutively to
other sentences being imposed at the same time or to sentences already imposed."
Commonwealth v. Pass, 914 A.2d 442, 446-447 (Pa. Super. 2006) (citation omitted). "Any
challenge to.the exercise of this discretion ordinarily does not raise a substantial question." Id.A defendant should not be given a volume discount for his crimes by having them all run
concurrently. Commonwealth • Hoag, 665 A.2d 1212, 1214 (Pa. Super. 1995). However, "a
sentence can be so manifestly excessive in extreme circumstances that it may create a substantial
31
question." Commonwealth Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014) (citation omitted). A
substantial question is raised when the decision to impose a consecutive sentence "raises the
aggregate sentence to, what appears upon its face to be, an excessive level in light of the criminal
conduct in this case." Id. at 133-134.
The appellate court shall vacate the sentence and remand the case to the sentencing court
with instructions if it finds:
(I)the sentencing court purported to sentence within the sentencing guidelines but
applied the guidelines erroneously;
(2) the sentencing count sentenced within the sentencing guidelines but the case involves
circumstances where the application of the guidelines would be clearly unreasonable; or
G)the sentencing court sentenced outside the sentencing guidelines and the sentence is
unreasonable.
[n all other cases the appellate court shall affirm the sentence imposed by the sentencing
court.
42Pa.C.S.A. $9781(¢)
A trial court's standard-range sentence will only be reversed if the sentence is clearly
unreasonable when viewed in light of the four statutory factors outlined in 42 Pa.C.S. $9781()."
Commonwealth v. Corley, 31 A.Sd 293, 298 (PA. Super. 2011) (citations omitted). Specifically,
the appellate court evaluates (1) [t]he nature and circumstances of the offense and the history and
characteristics of the defendant; (2) [t]he opportunity of the sentencing court to observe the
defendant, including any presentence investigation; (3) [t]he findings upon which the sentence
was based; [and] (4) [t]he guidelines promulgated by the commission. 42 Pa.C.S. $9781()
32
When imposing a sentence, a court is required to consider the particular circumstances of
the offense and the character of the defendant. In particular, the court should refer to the
defendant's prior criminal record, his age, personal characteristics and his potential for
rehabilitation.
Commonwealth • Griffin, 65 A,3d 932, 937-938 (Fa. Super. 2013) (quotation marks and
citations omitted).
In this case, Diaz argues that there were a number of factors that support his contention
that his sentence was excessive. Each one of those claims is addressed below.
Diaz first argues that this Court erred and/or abused its discretion when it failed to
consider the mitigating factors present in this case. Specifically, he claims that this Court did not
consider his remorse or that he had children. However, the Pennsylvania Superior Court has
held that "an allegation that a sentencing court failed to consider or did not
adequately consider certain mitigating factors does not raise a substantial question that the
sentence was inappropriate." Commonwealth v. Pacheco, 227 A.3d 358, 375 (Pa. Super. 2020).
Therefore, Diaz's claim that this Court failed to consider his remorse or that he had children does
not provide a basis for appellate review of his sentence.
Diaz next claims that this Court erred and/or abused its discretion by failing to consider
Diaz's rehabilitative needs or otherwise consider the sentencing standards listed in 42 Pa.C.SA.
$9721. During sentencing, this Court stated as follows:
THE COURT: All right. All right. In fashioning my sentence I have considered
the sentencing factors as I'm required to do under Title [42],
Section 9721, subsection B;
33
I have specifically considered the protection of the public, the
nature of the offense;
I've considered the large quantity of drugs that was put out onto
our streets over a considerable period of time;
I've considered the Commonwealth's arguments;
I've considered the statement by Mr. Diaz and by his defense
counsel;
I've considered the risk of recidivism. I believe that the defendant
has been given multiple opportunities, In 2008 he was convicted
of possession with the intent to deliver, he received a sentence of8
to 48 months. According to my calculations, he would have still
been under supervision when he received the next possession with
intent to deliver in 2010 of which he received another sentence of
27to.54 months. He currently has, I believe, a charge in another
county that he's serving a sentence on. So I believe that at the age
of 39 years he has already been given multiple opportunities to
change and has not;
I've considered the gravity of the offense as it relates on the impact
in the life of our community. Our community is in a crisis of drugs
that are being put out on our street and what is happening to
individuals who are using those drugs. When I consider the harm
to the victim, I consider the harm to the community. I consider the
large amount of cocaine that was being delivered and the large
34
34
amount of meth that was being delivered in bulk that could have
been broken down into thousands of packets delivered out onto the
street;
I've considered the rehabilitative needs of the defendant;
I've considered his prior criminal record. He has [a prior record]
score of5. He's 39 years of age;
Ive considered his potential for rehabilitation;
I've considered his, what I would consider a lack of remorse for
what he did;
Ive considered the nature of the offense. As I indicated, this is a
large amount of drugs. This was a large organization involving
multiple people throughout the County;
Ive considered the guidelines in my sentence, There are no
factors in favor of probation as the guidelines. There is nothing
within the guidelines that would favor probation under Title 42,
Section 9722;
Ive considered the basis for total confinement under Title 42,
Section 9725, and I believe that total confinement is appropriate. I
think that any lesser sentence is going to depreciate the seriousness
of this crime.
Notes of Testimony, Sentencing Hearing, June 8, 2018 (N.T.S.") at 11-13.
35
Diaz's claim is directly contradicted by the record, This Court considered his
rehabilitative needs as well as the sentencing factors contained in 42 Pa.C.SA. $9721(b). He is
hot entitled to relief
Diaz next argues that this Court erred and/or abused its discretion when it failed to
consider Diaz's rehabilitative needs by failing to elicit potential needs or adequately explain how
it had weighed his rehabilitative needs. He further claims that this Court failed to explain how
his needs would be best served by this sentence when his actual needs were for further education,
job training and career services. However, this Court was under no obligation to do so. The
Pennsylvania Superior Court has held that a sentencing judge may satisfy requirement of
disclosure on the record of his [or her] reasons for imposition of a particular sentence without
providing a detailed, highly technical statement." Commonwealth v. Huner, 868 A.2d 498, 514
(Pa. Super. 2005) (citation omitted). As set forth above, this Court considered Diaz's
rehabilitative needs during sentencing. This Court also notes that Diaz had the opportunity to
make a statement and failed to inform this Court of any specific rehabilitative need he sought to
have addressed. Diaz's dissatisfaction with quality of this Court's statement or a lack of inquiry
into all of his specific needs does not entitle him to relief
Diaz next argues that this Court erred and/or abused its discretion by sentencing Diaz to
consecutive sentences amounting to a life sentence without adequate reasons.
In Commonwealth • Bradley, 237 A.3d 13I (Pa. Super. 2020), the appellant entered a
guilty plea to various theft offenses and argued that his sentence of 17 to 34 years constituted a
de facto life sentence. Bradley, supra at 1139. He claimed that he would be 81 years old when
he was finished his maximum term which exceeded the life expectancy for men in the United
States of78.5 years. Id. at 1140. However, the Superior Court stated that the appellant
36
incorrectly focused on the length of his total tenn and not the date of his potential release. Id.
The appellant would be 64 years old on the date he could be released which was I years prior to
the average life expectancy argued by the appellant. Id. Therefore, the appellant's sentence was
not a de facto life term. Id. at 1140-1141.
In this case, Diaz was 39 years old when he was sentenced on June 8, 2018, to serve a
cumulative sentence of 18/ years to 50 years. He received credit for the 124 days he previously
served. Diaz has the potential to be released as early as 2036 when he will be approximately 57
years old. Similar to the appellant in Bradley, Diaz appears to be incorrectly focusing on the
total length of his sentence in support of his argument that he received a de facto life sentence.
However, in accordance with Bradley, Diaz is clearly not serving such a sentence as he has the
potential to be released at the age of57 which is 21 years prior to the average life expectancy in
the United States of 78.7 years. Center for Disease Control, National Center for Health
Statistics, available at https://www.cdc.gov/nchs/fastats/life-expectancy.htm (life expectancy in
the United States is 78.7 years) (last visited on May 14, 2021).
Diaz also claims that there were inadequate reasons placed on the record to justify
consecutive sentences. At sentencing. this Court exercised its discretion and imposed
consecutive sentences on Diaz. As set forth above, a challenge to the exercise of this discretion
does not ordinarily raise a substantial question unless the aggregate sentence appears to be
excessive in light of the criminal conduct. In this case, Diaz was involved in an illegal enterprise
that distributed large amounts of controlled substances throughout Berks County. The sentence
was not excessive in light of his criminal conduct. Contrary to Diaz's assertion, he did not
receive a life sentence for these offenses. This Court included numerous reasons on the record in
support of Diaz's sentence. He is not entitled to relief.
37
Regarding Diaz's claim that this Court abused its discretion by focusing solely on Diaz's
criminal record and nature of his criminal offenses during sentencing, the record contradicts his
assertion. This Court specifically stated at sentencing that it was considering the sentencing
factors as set forth in 42 Pa.C.S.A. $9721(b). NT.S. at11. In addition to Diaz's criminal record
and the offenses in this case, this Court considered, inter alia, the protection of the public, the
statements of Diaz and the attorneys, Diaz's risk of recidivism, the gravity of the offense as it
relates to the impact on the community and Diaz's rehabilitative needs. N.T.S. at 11-12.
Therefore, Diaz is not entitled to relief
Diaz next claims that this Court erred and/or abused its discretion by imposing an
unreasonable sentence, a violation of due process and the Sentencing Code. He alleges that this
Court unreasonably applied the statutory maximum when sentencing Diaz.
In this case, Diaz was convicted of two counts of corrupt organizations, one count of
criminal use of communication facility, two counts of conspiracy to commit delivery of a
controlled substance and six counts of delivery of a controlled substance. Diaz had a prior
record score of 5. NT.S. at 2. On the corrupt organizations counts, the offense gravity score
was 8 on both offenses with a standard range of27 t0 33 months, plus or minus 9 months. Id, at
2. Diaz was sentenced to serve a standard range sentence of27 to 54 months on each charge. Id.
at 14. On the count of criminal use of communication facility, the offense gravity score was 5
with a standard range of 12 to 18 months, plus or minus 3 months. Id. at 2. Diaz was sentenced
to serve a standard range sentence of 12 months to 24 months on that offense. Id. at 14. On the
count of conspiracy to commit delivery of methamphetamine, the offense gravity score was 1I
with a standard range of 72 to 90 months, plus or minus 12 months, Id. at 2. Diaz was sentenced
to serve a mitigated range sentence of 60 months to 120 months on that offense. Id. at 13. On
38
the count of conspiracy to commit delivery of cocaine, the offense gravity score was 10 with a
standard range of 60 to 72 months, plus or minus 12 months. Id. at 3. Diaz was sentenced to
serve a standard range sentence of 60 months to 120 months on that offense. Id. at 14. On the 4
counts of delivery of cocaine, the offense gravity score was IO with a standard range of 60 to 72
months, plus or minus 12 months. Id. at 3. Diaz was sentenced to serve a standard range
sentence of 72 months to 20 years on each of the 4 counts. Id. at 14-15. On the 2 counts of
delivery of methamphetamine, the offense gravity score was 11 with a standard range of 72 to 90
months, plus or minus 12 months. Id. at 3. Diaz was sentenced to serve a standard range
sentence of 90 months to 30 years on both counts. Id, at 15-16. Diaz's aggregate sentence was
18 % to 50 years.
Pursuant to 42 Pa.C.S.A. 8$9781(c), this Court's standard range sentences imposed on
Diaz will only be vacated if the application of the guidelines was clearly unreasonable. 42
Pa.C.S.A. $9781(e)(2). In making that determination, an appellate court will review the factors
outlined in 42 Pa.CS.A. $9781().
The first factor, the nature and circumstances of the offense and the history and
characteristics of the defendant, support a finding that the standard range sentence was clearly
reasonable. The evidence established that Diaz was involved in the large-scale distribution of
narcotics within Berks County. He was working with other individuals in this illegal enterprise,
Diaz had two prior convictions for possession with intent to deliver, possession of a small
amount of marijuana and a charge of driving under the influence, N.T,S. at 3-7, This Court also
had the opportunity to learn about Diaz's characteristics during the course of both the trial and
senteneing hearing.
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Regarding the second factor, this Court had ample opportunity to observe Diaz during the
trial and sentencing hearing. This Court observed Diaz's personality, demeanor and conduct
during his trial and sentencing. This factor also supports a finding of clear reasonableness.
The third and fourth factors, the findings upon which the sentence was based and the
guidelines, also support a finding that the standard range sentences imposed were clearly
reasonable. This Court set forth its findings and reasons for imposing standard range sentences
on Diaz and incorporates them by reference herein. Additionally, this Court was aware of and
considered the guidelines when imposing the sentence.
Based on the above analysis, Diaz's standard range sentences were clearly reasonable
under the circumstances. Although Diaz cites Commonwealth v. Cotlerson, 34 A.3d 135(Pa.
Super. 2011), in support of his argument, this case is distinguishable. In Colverson, the trial
court sentenced the defendant to serve 18 to 90 years of incarceration for rape and burglary.
Colverson, supra at 138. Here, Diaz was sentenced to serve 18 % to 50 years for his
involvement in the mass distribution of narcotics. Second, the defendant in Colverson had no
prior record and cooperated with the police. Id. at 140, 143. Here, Diaz had a prior record score
of 5 which consisted of, inter «lid, two prior charges for possessing controlled substances with
intent to deliver. There was no indication that Diaz was cooperative with law enforcement.
Lastly, the trial court in Colverson only considered the victim impact and acted on its impulse
to obtain retribution for the victim when imposing its sentence. Id. at 148. Here, this Court set
forth numerous factors and justifications for the imposition of its sentence, Therefore, Diaz is
not entitled to relief pursuant to Coulverson.
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Testimonv ofMichaelMullen
Diaz next claims that this Court erred and/or abused its discretion when it overruled
Diaz's objections to the testimony of MichaelMullen. At trial, the Commonwealth sought to
call MichaelMullen, Jr, (Mullen"), of the Berks County Prison System to testify regarding
Diaz's prison intake sheet. NT. at283. The intake sheet listed a phone number for Diaz as 484-
599-0187. Id. at 285, 400. The Commonwealth intended to call Mullen to testify that Diaz
would have provided this number to the prison at his intake. Id. at 283, 286, 400. Diaz objected
to the admission of the intake sheet and to Mullen's testimony regarding that intake sheet due to
lack of notice ofa witness and a discovery violation. Id. at 284, 399. I response, the
Commonwealth stated that they were not previously in possession of the intake sheet and were
not aware that it was relevant until Diaz raised the issue at trial. Id. at 285. The discussion of
Mullen's testimony and the production of the intake sheet occurred a day prior toMullen
actually being called to testify. Id. at 287.
Rule 573 of the Pennsylvania Rules of Criminal Procedure sets forth the items that must
be provided by the Commonwealth in discovery. The Rule states, in relevant part, as follows:
Rule 573. Pretrial Discovery and Inspection
(B) Disclosure by the Commonwealth
(L)Mandatory. I all court cases, on request by the defendant, and subject to any
protective order which the Commonwealth might obtain under this rule, the
Commonwealth shall disclose to the defendant's attorney all of the following requested
items or information, provided they are material to the instant case. The Commonwealth
4
shall, when applicable, permit the defendant's attorney to inspect and copy or photograph
such items.
(a) Any evidence favorable to the accused that is material either to guilt or to
punishment, and is within the possession or control of the attorney for the
Commonwealth;
(b) any written confession or inculpatory statement, or the substance of any oral
confession or inculpatory statement, and the identity of the person to whom the
confession or inculpatory statement was made that is in the possession or control
of the attorney for the Commonwealth;
(c) the defendant's prior criminal record;
(d) the circumstances and results of any identification of the defendant by voice,
photograph, or in-person identification;
(e) any results or reports of scientific tests, expert opinions, and written or
recorded reports of polygraph examinations or other physical or mental
examinations of the defendant that are within the possession or control of the
attorney for the Commonwealth;
(f) any tangible objects, including documents, photographs, fingerprints, or other
tangible evidence; and
(g) the transcripts and recordings of any electronic surveillance, and the authority
by which the said transcripts and recordings were obtained.
Pa.R.CmHm.P. 57303)(1).
In Commonwealth v. Sullivan, 820 A.2d 795 (Pa. Super. 2003), the defendant was
convicted after a trial by jury of voluntary manslaughter. Sullivan, 820 A.2d at 798. During the
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trial, one of the Commonwealth's witnesses testified to a previously undisclosed inculpatory
statement made by the defendant. Id. at 801. The defendant moved for a mistrial and, during
argument on the motion, the Commonwealth stated that they were unaware of the statement until
the witness testified. Id. The Superior Court held that there was no discovery violation as the
Commonwealth had no/obligation to provide a statement to the defense that it did not possess.
Id. at 804.
In the case at bar, the Commonwealth informed this Court that they were not in
possession of the intake sheet or aware of its relevance until Diaz disputed his utilization of cell
phone number 484-599-0187 during trial. The Pennsylvania Superior Court has held that a
"defendant may request and the Commonwealth is required to produce inculpatory evidence that
is relevant and within its possession." Commonwealth • Dent, 837 A.2d 571, 585 (Pa. Super.
2003) (citation omitted) (emphasis in original). Since the intake sheet only became relevant at
trial and was not previously in the possession of the Commonwealth, the Commonwealth was
not required to produce the intake sheet. Therefore, this Court overruled Diaz's objection as
there was no discovery violation. Additionally, this Court further notes that Mullen was called to
testify on the day following Diaz's objection. Diaz had a full day to prepare for Mullen's
testimony, See Commonwealth v. Smith, 416 A.2d 494 (Pa. 1980) (new trial not required when
Commonwealth failed to disclose witness identity until mid-trial where defendant
given time to prepare and no prejudice shown).
Diaz's Objections to the Commonwealth's Exhibits
Diaz alleges that this Court erred and/or abused its discretion when it overruled his
objections to Commonwealth Exhibits 83, 84 and 86. Exhibit 83 was Diaz's arraignment
information sheet. Exhibit 84 was Diaz's affidavit of tights. Exhibit 86 was Diaz's intake
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sheet/prisoner information report. He claims that the exhibits were inadmissible hearsay and
their use constituted a discovery violation due to the Commonwealth's late production of these
documents.
Regarding Exhibit 83, Diaz's objection at trial was to this Court's decision to take
judicial notice of Diaz's preliminary arraignment sheet as previously addressed in this opinion.
Diaz did not raise a claim that this evidence was inadmissible hearsay or that the Commonwealth
committed a discovery violation. Therefore, Diaz has waived this issue. See Commonwealth v.
Stolt:fis, 337 A.2d 873, 881 (Pa. 1975) (it has long been the rule in this jurisdiction that if the
ground upon which an objection is based is specifically stated, all other reasons for its exclusion
are waived, and may not be raised post-trial."). Additionally, when the preliminary arraignment
form was marked as Exhibit 83, Diaz joined in the motion requesting that this Court take judicial
notice of the document. Id. at 336. Diaz is not entitled to relief.
Regarding Exhibit 84, Diaz's affidavit of rights, Diaz did not raise any objection to this
exhibit during trial and, again, joined with the Commonwealth to request that this Court take
judicial notice of the exhibit. N.T. at 336. Diaz has waived this issue. See Pa.R.A.P. 302(a)
("Issues not raised in the trial court are waived and cannot be raised for the first time on
appeal.").
Regarding Exhibit 86, this Court incorporates by reference its previous discussion
regarding the admissibility of Diaz's prison intake sheet.
Denial of Diaz's Post-Sentence Motion and Supplemental Post-SentenceMotion
Diaz argues that this Court erred and abused its discretion when it denied his post-
sentence motions, The issues raised in Diaz's post-sentence motions were all raised in Diaz's
concise statement and addressed by this Court within this memorandum opinion. This Court
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incorporates by reference the discussion contained within this opinion as the justification for
denying Diaz's post-sentence motions.
For the foregoing reasons, we respectfully request that Diaz's appeal be DENIED and his
sentence AFFIRMED.
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