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[U] Commonwealth v. Hernandez

Superior Court of Pennsylvania

February 6, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JOSE HERNANDEZ, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence entered March 27, 2012, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No(s): CP-51-CR-0006144-2011

BEFORE: ALLEN, STABILE, and STRASSBURGER [*] , JJ.

MEMORANDUM

ALLEN, J.

Jose Hernandez ("Appellant") appeals from the judgment of sentence imposed after the trial court convicted him of possession with intent to deliver a controlled substance ("PWID") and knowing and intentional possession of a controlled substance.[1] We affirm.

At trial, the Commonwealth presented the testimony of Philadelphia Police Officer Gene Kittles. Appellant did not present any testimony. The trial court summarized Officer Kittles' testimony as follows:

On May 5, 2011, between the hours of 6:00 pm and 9:00 pm, Officer Kittles of the Narcotics Unit was conducting a controlled buy of drugs in the 2900 block of Franklin Street using a confidential informant. The confidential informant was searched before conducting the buy and was negative for both money and contraband. The confidential informant was given prerecorded buy money in the amount of $20 and told to go to 2909 Franklin Street while Officer Kittles had a close, unobstructed view of him. The confidential informant knocked on the door, interacted with a Latino female identified as Jasmine Vasquez, who then gestured for the confidential informant to go to the corner of Franklin Street and Cambria Street. The confidential informant went to the corner and stood next to Appellant who was already at the location. Ms. Vasquez then exited 2909 Franklin Street, walked up to Appellant, handed him blue colored items which Appellant immediately handed to the confidential informant in exchange for the prerecorded buy money. The confidential informant then met back with Officer Kittles where he gave the Officer what was received from Appellant, which were two blue glassine packets, stamped with the words "Super Nitro" and containing heroin.
On May 10th, a similar series of events occurred with the confidential informant; however Appellant was not present during any of the drug transactions on that date and location. Officer Kittles' partner, Officer McKeller then obtained a search and seizure warrant for 2909 Franklin Street. On May 11th, Officer Kittles participated in the execution of that warrant. Upon entry into the home, Officer Kittles encountered both Jasmine Vasquez and Appellant, who were both placed under arrest. During the search of the property none of the prerecorded buy money was recovered. However, in a second floor bedroom officers did recover from a hole in the wall a bag containing unused and empty packets. In that same room officers also seized a picture of Appellant and a female, later identified as Elise Ortiz on a dresser.

Trial Court Opinion, 3/15/13, at 2-3 (citations to notes of testimony and footnote omitted).

Following a February 7, 2012 bench trial, Appellant was convicted of PWID and knowing and intentional possession of a controlled substance relative to May 5, 2011. N.T., 2/7/12, at 50-52.[2] The trial court sentenced Appellant to 3 to 6 years in prison. Appellant filed this timely appeal and raises the following issues:

1. Is [Appellant] entitled to an arrest of judgment on all charges including PWID as the evidence was insufficient to sustain a verdict?
2. Is [Appellant] entitled to a new trial as the verdict was not supported by the greater weight of the evidence?

Appellant's Brief at 3.

In his first issue, Appellant challenges the sufficiency of the evidence. Our standard ...


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