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[U] Commonwealth v. Hernandez

Superior Court of Pennsylvania

February 6, 2014



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




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 of review is well-settled:

When evaluating a sufficiency claim, our standard is whether, viewing all the evidence and reasonable inferences in the light most favorable to the Commonwealth, the factfinder reasonably could have determined that each element of the crime was established beyond a reasonable doubt. This Court considers all the evidence admitted, without regard to any claim that some of the evidence was wrongly allowed. We do not weigh the evidence or make credibility determinations. Moreover, any doubts concerning a defendant's guilt were to be resolved by the factfinder unless the evidence was so weak and inconclusive that no probability of fact could be drawn from that evidence.

Commonwealth v. King, 990 A.2d 1172, 1178 (Pa.Super. 2010) (internal citations omitted).

In challenging the sufficiency of the evidence to support his PWID and knowing and intentional possession of a controlled substance convictions, Appellant argues that the Commonwealth failed to prove that he "at any time possessed narcotics." Appellant's Brief at 9. Appellant contends that "with regard to the May 5th incident … the Commonwealth did not prove that an illegal transaction had transpired. The Commonwealth did not call the Confidential Informant. Thus, the Commonwealth did not prove and certainly not beyond a reasonable doubt that the packets [the confidential informant] gave to Officer Kittles were indeed something that was given to him by [Appellant] and/or the Latina lady." Id. at 7.

The trial court, as factfinder, rejected this argument and explained:

The Court made credibility findings based on the totality of the evidence presented at trial. The Court found the testimony of Officer Kittles believable … Officer Kittles witnessed the transaction between the confidential informant and the Appellant from a close, unobstructed vantage point; his observation was corroborated by the recovery of the heroin from the confidential informant; and the recovery of unused packets from a hole in the wall in the room in which Appellant was apprehended.
Ultimately, the Court must make a credibility determination in assessing what is to be believed when applying the law. This Court considered the evidence and made its findings. In this Commonwealth, the judge, as the trier of fact in non-jury cases, is free to judge the credibility of witnesses and can believe all, part, or none of the their testimony. Commonwealth v. Zankowski, 377 Pa.Super. 256, 546 A.2d 1254, 1256 (Pa.Super. 1988).

Trial Court Opinion, 3/15/13, at 5-6.

Upon review, the testimony of record and applicable case law support the trial court's determination that sufficient evidence existed to sustain Appellant's convictions for PWID and knowing and intentional possession of a controlled substance. See 35 P.S. §§ 780-113(a)(30) and (16). Appellant's sufficiency issue is without merit.

In his second issue, Appellant asserts that his convictions were against the weight of the evidence. Appellant states that "the greater weight of the evidence would have established that it was only guesswork as to whether [Appellant] actually possessed and actually transferred drugs on the day in question." Appellant's Brief at 11.

Before addressing the merits of this claim, we note that the record is devoid of any evidence that Appellant has preserved his weight claim. Pa.R.Crim.P. 607 provides that a claim that a verdict is against the weight of the evidence must be raised with the trial judge in a motion for a new trial 1) orally, on the record before sentencing, 2) in writing, any time before sentencing, or 3) in a post-sentence motion. Failure to comply with Pa.R.Crim.P. 607 results in waiver. See Commonwealth v. Little, 879 A.2d 293, 300-301 (Pa.Super. 2005). The fact that a trial court addresses a claim in its Pa.R.A.P. 1925(a) opinion is of no consequence. Commonwealth v. Washington, 825 A.2d 1264 (Pa.Super. 2003) (failure to raise a weight issue in a post-trial motion, despite the fact that the court addressed it in its opinion resulted in waiver of issue on appeal).

Here, Appellant did not raise his weight claim orally after the trial court rendered its verdict, (see N.T., 2/7/12, at 52-54), and the sentencing transcript from March 27, 2012 is absent from the record. Further, the record contains no written or post-sentence motion challenging the weight of the evidence. Appellant's weight claim is waived.

Based on the foregoing, we find no merit to Appellant's issues challenging the sufficiency and weight of the evidence presented at trial.

Judgment of sentence affirmed.

Judgment Entered.

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