Appeal from the Judgment of Sentence April 14, 2011 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0003359-2010
The opinion of the court was delivered by: Bowes, J.
BEFORE: STEVENS, P.J., FORD ELLIOTT, P.J.E., BOWES, GANTMAN, PANELLA, SHOGAN, LAZARUS, MUNDY, and OTT, JJ.
Eddie Feliciano appeals from the judgment of sentence of seven years and three months to fourteen and one-half years incarceration imposed by the trial court after he was convicted of four counts of violating 35 P.S. § 780-113(a)(30), relating to delivery and possession with intent to deliver cocaine ("PWID"), two counts each of possession of cocaine and conspiracy to commit PWID, and one count of conspiracy to commit possession of cocaine. We affirm.
The trial court set forth the pertinent facts as follows.
On Monday, January 18, 2010, Detective Christopher Mayer of the Reading Police Department was working in an undercover capacity in the Vice Section handling drug transactions, among other matters. At the time, Detective [Pasquale] Leporace was also working in the Vice Section of the Reading Police Department. After receiving information from a confidential source, Detective Leporace instructed Detective Mayer to accompany the confidential source to the 800 block of Locust Street in the City of Reading, Berks County, Pennsylvania, to attempt to purchase five bags containing cocaine from the Defendant.
A few moments after Detective Mayer and the confidential source arrived in the 800 block of Locust Street, the Defendant exited 848 Locust Street and walked to the passenger side of Detective Mayer's vehicle. Detective Mayer was driving a blue, late-80's model Chevrolet pickup truck. The Defendant approached the passenger side of the truck and handed the confidential source five bags containing a substance that subsequently tested positive for cocaine. Detective Mayer took the five packets from the confidential source and handed the Defendant $40 in pre-recorded U.S. currency. The Defendant walked away from the truck, and Detective Mayer and the confidential source went to the Vice Office, where Detective Mayer performed a preliminary Valtox test on the substance in the packets. The substance tested positive for cocaine. Detective Mayer then placed the five packets containing cocaine into an evidence envelope, which he sent to the Bethlehem Regional Laboratory for chemical testing.
On January 21, 2010, Detective Mayer returned to the 800 block of Locust Street with the confidential source around 2:30 p[.]m. Detective Mayer was again driving the same blue truck. After parking the truck, Detective Mayer encountered an unnamed Hispanic female (hereinafter "Jane Doe"). Detective Mayer stepped out of the truck and spoke with Jane Doe. She told the Detective, "He's bagging it up. He will be out." Jane Doe then walked into 848 Locust Street, and Detective Mayer returned to the driver's seat of the truck. A few moments later, the Defendant exited 848 Locust Street, approached the truck, and got in on the passenger side. The Defendant instructed Detective Mayer to drive around the block. During the ride, Detective Mayer handed the Defendant $40 in pre-recorded U.S. currency in exchange for five bags containing a substance that subsequently tested positive for cocaine.
Trial Court Opinion, 8/19/11, 2-3 (internal citations omitted).
Thereafter, the Commonwealth charged Appellant with the aforementioned crimes and Appellant proceeded to a jury trial. At trial, over Appellant's objection, the court permitted the prosecution to introduce the statement made by the unknown female in which she told the undercover officer, "He's bagging it up. He will be out." N.T., 3/23/11, at 29. Additionally, the undercover officer testified as to the drug transactions and how he placed the cocaine sold to him in evidence envelopes and sealed them with evidence tape before placing them in the evidence section of his department. William MacLuckie, a forensic scientist, testified to receiving the sealed evidence envelopes and testing them for cocaine. The packets tested positively for cocaine, and he resealed the evidence envelopes and signed his name on the envelopes. The cocaine in those envelopes was admitted into evidence over Appellant's chain-of-custody objection.
The jury found Appellant guilty of all charges and the court sentenced him on two counts of delivery of cocaine and one count of conspiracy to commit PWID. The court imposed consecutive sentences of thirty-three to sixty-six months on the two delivery charges and a consecutive sentence of twenty-one to forty-two months for the conspiracy count for an aggregate sentence of seven years and three months to fourteen years and six months imprisonment. This appeal ensued. The trial court directed Appellant to file and serve a concise statement of errors complained of on appeal and he complied. The trial court authored a Pa.R.A.P. 1925(a) opinion.
A panel of this Court, with this author dissenting, reversed and remanded for a new trial as to each of Appellant's convictions based on the admission of Appellant's co-defendant's statements, despite the fact that Appellant did not challenge all of his convictions on that ground. The Commonwealth petitioned for reargument and this Court granted that request. The matter is now ready for disposition. Appellant raises three issues for this Court's consideration.
A. Whether the evidence was insufficient to establish beyond a reasonable doubt that Appellant was guilty of conspiracy to commit delivery of a controlled substance, in that the Commonwealth failed to establish that Appellant entered into an agreement to commit or aid in an unlawful act with another person and/or that Appellant and the other person both had a shared criminal intent?
B. Whether the trial court erred in denying Appellant's motion in limine to exclude hearsay testimony from declarant Jane Doe, an alleged unidentified coconspirator, when the Commonwealth failed to prove the existence of a conspiracy between declarant and Appellant, that the statements were made during the course of the conspiracy, and/or that the statements were made in furtherance of a common design?
C. Whether the trial court erred in admitting into evidence the two envelopes of packets of cocaine where there were several gaps in the chain of custody, including any evidence about the transportation of the items at issue from city hall to the laboratory, any evidence about how the items came to the forensic scientist, where they went after he finished examining them, and any ...