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[U] Commonwealth v. Garcia

Superior Court of Pennsylvania

February 18, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JESUS M. GARCIA, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order entered on March 13, 2013 in the Court of Common Pleas of Lebanon County, Criminal Division, No. CP-38-CR-0000829-2008

Heather Adams, Esquire For Commonwealth of Pennsylvania ATTORNEY GENERAL'S OFFICE

Earl G. Kauffman, Esquire For Jesus M. Garcia at Trial

Joseph M. Sembrot, Esquire For Jesus M. Garcia on Appeal GOLDBERG KATZMAN, P.C.

BEFORE: BENDER, P.J., PANELLA and MUSMANNO, JJ.

MEMORANDUM

MUSMANNO, J.

Jesus M. Garcia ("Garcia") appeals from the denial of his Petition filed pursuant to the Post Conviction Relief Act ("PCRA"). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

The trial court has set forth the relevant underlying facts in its Opinion. See Trial Court Opinion, 4/23/09, at 3-12. We adopt the trial court's recitation for the purpose of this appeal. See id.

Garcia and his co-defendants, Alex Emilio Rodriguez and Luis Mojica, proceeded to a jury trial in November 2008. After hearing the evidence, Garcia was found guilty of four counts of possession with intent to deliver a controlled susbstance, two counts of criminal conspiracy, one count each of criminal use of a communication facility, corrupt organizations and corrupt organizations conspiracy.[1] Following a procedural history not relevant to the disposition of Garcia's PCRA Petition, the trial court sentenced Garcia to an aggregate term of twenty-five to fifty-two in prison. Garcia's judgment of sentence became final on April 10, 2012.[2] On April 30, 2012, Garcia timely filed, pro se, the instant PCRA Petition. The PCRA court appointed Garcia counsel, who filed an amended PCRA Petition. Following a hearing, the PCRA court denied Garcia's Petition on March 13, 2013. Garcia filed a timely Notice of appeal.

On appeal, Garcia raises the following issues for our review:
1. Whether trial counsel was ineffective for failing to object to the [Commonwealth's] introduction of illegally obtained wiretap evidence[, ] [] which ultimately led to [Garcia's] conviction?
2. Whether trial counsel was ineffective for failing to object to the Commonwealth's introduction of [a] confidential informant's testimony where the Commonwealth knowingly elicited false testimony therefrom?

Brief for Appellant at 4 (some capitalization and punctuation omitted).

In reviewing the denial of a PCRA Petition, we examine whether the PCRA court's determination "is supported by the record and free of legal error." Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007) (citations omitted).

Garcia contends that, because Commonwealth witness Cesar Jaen ("Jaen") was told that his cooperation with law enforcement might result in a reduction of sentence for numerous charges pending against him, he was "essentially coerced" to serve as a confidential informant regarding Garcia's illegal activities. Brief for Appellant at 10. Based on this alleged coercion, Garcia contends, Jaen did not properly consent to the wiretapping of conversations between Jaen and Garcia, thereby rendering the intercepted telephone conversations inadmissible at trial. Id. Garcia claims that his counsel was ineffective for failing to object to the introduction of such evidence. Id. at 11. Garcia further contends that the Commonwealth knew that Jaen was "the boss" of the drug ring in question, but compelled Jaen to testify that Garcia was "the boss" of the drug ring. Id. at 13. Garcia claims that his counsel "was aware of said conspiracy[, ] but failed to cross-examine [] Jaen on such grounds." Id.

To succeed on an ineffectiveness claim, Garcia must demonstrate by the preponderance of the evidence that

(1) [the] underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and (3) but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the proceedings would have been different.

Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). A failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). Counsel is presumed to be effective and the burden is on the appellant to prove otherwise. Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011).

Here, the PCRA court addressed Garcia's ineffective assistance claims and concluded that they are without merit. See PCRA Court Opinion, 3/13/13, at 6-7, 8-10. We adopt the PCRA court's sound reasoning for the purpose of this appeal. See. id. Accordingly, we conclude that the PCRA court properly denied Garcia's Petition.

Order affirmed. Judgment Entered.

OPINION

CHARLES, J.

If the Lebanon County cocaine distribution network of 2007-2008 were an army, the Defendant Jesus Garcia (hereafter referred to as "GARCIA") was its general. Based in part upon electronic surveillance conducted by the Attorney General's Bureau of Narcotics Investigation (hereinafter "BNI") that revealed the scope and extent of GARCIA's drug operations, a jury convicted GARCIA of multiple felony offenses, including Pennsylvania's racketeering statute. Based upon th-ose verdicts and what we perceived as GARCIA's leadership role in the drug trafficking described at trial, we imposed an aggregate sentence of 25 to 52 years in a state correctional institution.

GARCIA filed an appeal. He challenges the propriety of the jury's verdicts as well as the appropriateness of our sentence. We issue this opinion today in order to reaffirm both the jury verdicts and the sentence we imposed.

1. ISSUES RAISED ON APPEAL

On March 20, 2009, GARCIA filed a Concise Statement of Errors Complained of on Appeal. The following allegations were raised by GARCIA:

(1) The evidence submitted by the Commonwealth was legally insufficient to justify the verdicts of the jury.
(2) The jury's verdicts were against the weight of evidence.
(3) The Court abused its discretion in sentencing GARCIA to an "excessive" sentence of 25 to 52 years.
(4) The Court erred in its handling of a post-trial jury taint proceeding.
(5) The Court erred by refusing to admit evidence of the confidential informant's use of aliases and multiple identities.
(6) The Court erred by denying the Defendant to fully cross-examine the confidential informant with respect to his prior record.

Because GARCIA chose to file an immediate appeal instead of post-sentence motions, we did not solicit or receive briefs and we have not had the opportunity to consider the legal arguments of both sides. Still, we are confident that we can perceive the essence of GARCIA's claims and we will comply with our obligation to issue this opinion under Pa.R.P. 1925.

II. FACTS

This was a consolidated trial involving GARCIA and his two co-defendants, Alex "Emilio" Rodriguez (hereafter referred to as "EMILIO") and Luis Mojica (hereafter referred to as "MOJICA"). As to all three Defendants, the Commonwealth laid out its case in chronological order. Most of the evidence was presented through BNI Investigator Ron DILLER (hereafter "DILLER"), BNI Investigator Luis Rodriguez (hereafter "RODRIGUEZ") and confidential informant Caesar Jaen (hereafter "JAEN"). In general terms, DILLER served as lead investigator in this case. RODRIGUEZ translated from Spanish to English all of the drug trafficking conversations that were intercepted, and JAEN provided eyewitness testimony with respect to drug deliveries and purchases.

DILLER's investigation began when he utilized a confidential informant by the name of Harry Tolbert to purchase drugs from JAEN (N.T. 10). Thereafter, DILLER obtained and executed a search warrant upon JAEN's house (N.T. 11). There, he seized 23 ounces of cocaine, 17 pounds of marijuana and several thousand dollars. As a result of this seizure, and because JAEN had a prior felony drug record, JAEN was facing a significant jail sentence (N.T. 11; 37; 62). In order to avoid this sentence and because he did not want to be removed from his children for such an extended period of time, JAEN decided to cooperate with BNI (N.T. 63; 12-13). For more than one year, JAEN worked as a confidential informant in Lebanon County, Dauphin County, Berks County and Philadelphia County (N.T. 14). Ultimately, the information generated through JAEN was presented to a Commonwealth statewide Grand Jury (N.T. 17).

At trial, JAEN preliminarily testified about his relationship with GARCIA, MOJICA and EMILIO. He stated that he met GARCIA at the Penn National Race Track eight years prior to trial (N.T. 65). He stated that GARCIA provided him with cocaine in amounts ranging from 125 grams to 250 grams (N.T. 66). He identified MOJICA as someone who worked for GARCIA (N.T. 67-68).[1] JAEN stated that he also met EMILIO at Penn National Race Course. He stated that EMILIO and GARCIA would "help each other out" with respect to the drug trade (N.T. 70).

JAEN had multiple contacts with GARCIA and his two co-defendants between February of 2007 and April of 2008. The Commonwealth introduced each incident through DILLER. JAEN then provided eyewitness testimony. At some point during the testimony of DILLER or JAEN, the Commonwealth played the audio tapes and provided English translation of those tapes prepared by RODRIGUEZ. As did the Commonwealth, we will separately describe each of the pertinent events that the Commonwealth presented as evidence against GARCIA. For purposes of clarity, we will do this in outline form as follows:

(1) February 26. 2007

JAEN testified that he spoke with GARCIA in a phone call about the purchase of drugs (N.T. 80). GARCIA reported that he had a friend in Puerto Rico and that he "got a lot of stuff down there" (N.T. 80). GARCIA then arranged to meet JAEN at an Exxon gas station along Interstate 81 (N.T. 89). This conversation was taped and played for the jury (Exh. 3).

(2) March 9. 2007

On this date, GARCIA called JAEN and offered to equally divide 125 grams of cocaine (N.T. 18; 66). JAEN was wired with recording equipment (N.T. 19). He then traveled to an Exxon gas station along Interstate 81 (N.T. 20-24). He was surveiled by DILLER and other BNI investigators as he did so (N.T. 20-25). JAEN stated that he spoke with MOJICA when he arrived at the 1-81 gas station (N.T. 83). MOJICA told JAEN that the cocaine was good (N.T. 83). JAEN then spoke with GARCIA, who stated that he had "cooked" the cocaine (N.T. 85). MOJICA then gave the cocaine to JAEN (N.T. 86). A recording of this transaction was played for the jury (Exh. 8).

(3) March 15, 2007

DILLER arranged for JAEN to call GARCIA in order to pay him for the cocaine he has acquired on March 8 (N.T. 125). JAEN testified that during this telephone call, GARCIA demanded that JAEN pay him $1, 500.00 (N.T. 134). This conversation was recorded and played for the jury (Exh. 9).

(4) March 16. 2007

DILLER gave JAEN $1, 500.00 to pay GARCIA. Once again, JAEN proceeded to the Exxon station near Interstate 81 and was surveiled by DILLER and other BNI agents (N.T. 126). At the Exxon station, DILLER observed JAEN speaking with both MOJICA and GARCIA (N.T. 126). At one point, DILLER stated that GARCIA stayed in the car with JAEN for a few minutes (N.T. 128). JAEN testified that GARCIA offered him "a full one" - 125 grams of cocaine (N.T. 137). During the conversation, GARCIA stated that he knew someone who was going to bring him 10 kilos of cocaine (N.T. 138). During this encounter, MOJICA gave the 125 grams of cocaine directly to JAEN (N.T. 140). JAEN then gave MOJICA the $1, 500.00 that had been provided to him from BNI (N.T. 141). This encounter was tape-recorded and the tape was played for the jury (Exh. 10).

(5) March 27, 2007

JAEN met with DILLER in order to arrange payment to GARCIA for the cocaine that had been delivered on March 16. A telephone call was made to GARCIA in order to arrange the details (N.T. 146). This telephone call was recorded and played for the jury (Exh. 15). JAEN testified that he told GARCIA he would have the funds on Thursday (N.T. 152).

(6) March 29. 2007

JAEN met with DILLER and received $3, 000.00 in BNI funds to be used to pay GARCIA (N.T. 153; 146). JAEN then drove to the Ono Truck Stop on U.S. Route 22 in order to meet GARCIA (N.T. 147). At the truck stop, GARCIA got into JAEN's car and JAEN gave GARCIA the $3, 000.00 in cash (N.T. 147; 154). A tape of this encounter was obtained and played for the jury (Exh.18). During JAEN's conversation with GARCIA, GARCIA stated that he expected to receive 10 kilos of cocaine from Puerto Rico (N.T. 155-156). Also during the course of this conversation about drugs, GARCIA mentioned the sum of 14 million dollars, although it was unclear as to what this amount related (N.T. 155-156).

(7) April 13, 2007

DILLER met with JAEN for the purpose of making a telephone call to EMILIO. This telephone call was taped and played for the jury (Exh. 21). The purpose of this call was to arrange for the purchase of 125 grams of cocaine (N.T. 161). Although this telephone call did not directly involve GARCIA, JAEN testified that he knew that EMILIO worked with GARCIA regarding drug transactions (N.T. 69-70). Moreover, on one occasion, GARCIA stated that he had gotten an ounce of cocaine from EMILIO (N.T. 75).

Later on April 13, 2007, DILLER met with JAEN and gave him $3, 100.00 in BNI funds (N.T. 162, 170). DILLER and JAEN then proceeded to the very same Exxon gas station where GARCIA had previously met with JAEN (N.T. 162; 170). There, DILLER saw JAEN meet with EMILIO (N.T. 163). JAEN testified that he met EMILIO and received cocaine in return for the $3, 100.00 he had been given from BNI (N.T. 170). A tape recording of this encounter was collected and eventually played for the jury (N.T. 164; Exh. 23).

(8) July 10, 2007

JAEN notified DILLER that GARCIA wanted to meet with him at Francisco's Pizza Shop in the city of Lebanon (N.T. 178). JAEN was wired and then surveiled as he and GARCIA met (N.T. 178). At this meeting, GARCIA offered to sell JAEN his "phone" for $15, 000.00 (N.T. 190). When asked why a "phone" would cost so much, JAEN responded: "Because the number of his customers [that were in the phone] and he told me that the phone makes $10, 000.00 per week." (N.T. 191). JAEN reported that GARCIA claimed that EMILIO had offered him $25, 000.00 for the phone (N.T. 191-192). During the conversation about the phone, GARCIA told JAEN that he had a client who sells $110.00 bags of cocaine every day and makes $7, 000.00 per week (N.T. 192-193). GARCIA also told JAEN how he dilutes the cocaine in order to increase its weight and value (N.T. 194). In addition, GARCIA reported that 10 kilos of cocaine would be arriving in two weeks and would generate $80, 000.00 in income (N.T. 195). Further, GARCIA stated that because customers are paid on Fridays, he - or his distributors - could make up to $5, 000.00 on a Friday (N.T. 197). GARCIA also stated that he routinely gets 11/2 kilos of cocaine from an individual named "Gallo" (N.T. 197). GARCIA also reported that a girl named "Mary" asks him for 8 kilos of cocaine on Thursday (N.T. 197). This conversation about large volume drug sales was recorded and played for the jury (Exh. 29).

Later on July 10, JAEN met with GARCIA at the McDonald's restaurant in Lebanon in order to obtain cocaine (N.T. 181, 199). DILLER surveiled this meeting (N.T. 182). During this meeting, GARCIA spotted DILLER's car and became suspicious (N.T. 200). GARCIA did give JAEN a box of crackers that contained 125 grams of cocaine (N.T. 183-184; Exh. 31A). GARCIA told JAEN that he owed $4, 000.00 for this cocaine (N.T. 185; 201).

(9) July 12. 2007

GARCIA met with JAEN at Francisco's Pizza Shop (N.T. 201). During this meeting, GARCIA expressed concern about DILLER's car and worried that somebody was "setting him up" (N.T. 202). As a result, GARCIA talked about the possibility of leaving the country (N.T. 204). JAEN paid GARCIA the $4, 000.00 that he owed during this meeting (N.T. 205). This meeting was recorded and played for the jury (Exh. 33).

(10) October 29. 2007

JAEN received a telephone call from GARCIA "asking to meet at Fransciso's Pizza". DILLER met with JAEN and gave him $1, 000.00 in BNI funds. He then conducted surveillance as JAEN met with GARCIA at the pizza restaurant (Vol. Ill. N.T. 7). JAEN described his meeting with GARCIA at Francisco's restaurant (Vol. Ill. N.T. 21). JAEN reported that GARCIA was concerned because he knew a man in New York City who was "busted" with 45 kilos of cocaine (Vol. Ill. N.T. 21). Because of his concern, GARCIA stated that he was sending money to the Dominican Republic so that he had money outside the country to rely upon (Vol. Ill. N.T. 22). While at the pizza shop, no drugs exchanged hands.

Later that evening, JAEN met with GARCIA near GARCIA's house at 10th and Willow Streets in Lebanon (Vol. Ill. N.T. 23). At this location, JAEN gave GARCIA $1, 000.00 in cash and received 125 grams of cocaine (Vol. Ill. N.T. 23). GARCIA was upset during this meeting because JAEN was late. GARCIA stated that he did not want to carry 125 grams of cocaine with him for any longer than was absolutely necessary (Vol. Ill. N.T. 24). JAEN took the cocaine and gave it to DILLER. He told DILLER that $3, 000.00 was still owed for this cocaine (Vol. Ill. N.T. 26). GARCIA's conversation with JAEN on October 29 was also recorded. This recording was played to the jury (Exh. 27). (11) November 5. 2007

Payment of the $3, 000.00 for the October 29 drug transaction was due on this date (Vol. Ill. N.T. 9). In order to pay this amount, JAEN met with GARCIA at Francisco's restaurant (Vol. Ill. N.T. 9; 26). At this time, JAEN paid GARCIA $3, 000.00 in BNI funds (Vol. Ill. N.T. 29). GARCIA continued to be nervous about possible police involvement. He stated that somebody named "Frank" warned him (Vol. Ill. N.T. 34). GARCIA bluntly asked JAEN whether he was working with the police. JAEN denied this (Vol. Ill. N.T. 34). A tape recording of this conversation was prepared and played for the jury (Exh. 37).

(12) January 15, 2008

The Commonwealth presented evidence of a drug purchase by JAEN from Angel Rodriguez (Vol. Ill. N.T. 43; 52). This transaction occurred and was tape recorded (Vol. Ill. N.T. 44; 52; Exh. 45). GARCIA was not directly involved in this transaction. However, JAEN stated that Angel Rodriguez was a "cousin" of GARCIA (Vol. Ill. N.T. 54).

(13) March 19. 2008

On this day, GARCIA was arrested (Vol. Ill. N.T. 57). No drugs or contraband were found on GARCIA or at his apartment (Vol. Ill. N.T. 57-58). However, DILLER reported that GARCIA was not employed at any "legitimate" occupation (Vol. Ill. N.T. 58).

IIII. DISCUSSION

A. WEIGHT AND SUFFICIENCY OF EVIDENCE

Because issues pertaining to weight and sufficiency of evidence are closely related, we will address them together. After setting forth the law pertaining to each issue, we will factually analyze each of the counts lodged against GARCIA.

(1) Law Pertaining to Sufficiency of Evidence

When reviewing a sufficiency of evidence claim, we must apply a two-step inquiry. First, we must consider all of the evidence in the light most favorable to the Commonwealth, accepting as true all evidence upon which a fact-finder could have based a verdict. Second, we must ask whether that evidence, along with all reasonable inferences to be drawn therefrom, was sufficient to prove guilt beyond a doubt. Commonwealth v. Azim, 459 A.2d 1244, 1246 (Pa.Super. 1983). In passing upon the credibility of witnesses and the weight of the evidence, the jury is at liberty to believe all, part or none of the evidence. Commonwealth v. Price, 610 A.2d 488 (Pa.Super. 1992). We are not to engage in post-verdict credibility discussions, nor are we permitted to substitute our factual opinion for that of a jury. Commonwealth v. Brown, 486 A.2d 441 (Pa.Super. 1984). If the fact-finder could have reasonably determined from the evidence that all of the necessary elements of the crime were established, then the evidence will be sufficient to support the verdict. Commonwealth v. Hopkins, 747 A.2d 910 (Pa.Super. 2000).

(2) Law Pertaining to Weight of Evidence

Although closely related, there is a distinction between challenges to sufficiency and lack of weight of evidence. That distinction was explained in Commonwealth v. Whiteman, 485 A.2d 459 (Pa.Super. 1984):

A motion for new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against the weight of the evidence. Whether a new trial should be granted on grounds that the verdict is against the weight of the evidence is addressed to the sound discretion of the trial judge...The test is not whether the court would have decided the case in the same way but whether the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail.

Id. at page 462, citing Commonwealth v. Taylor, 471 A.2d 1228, 1229-1230 (Pa.Super. 1984). If there is insufficient evidence to support a jury's verdict, the double jeopardy clause of the Fifth Amendment to the United States Constitution precludes retrial. See Commonwealth v. Whiteman, supra, citing Hudson v. Louisiana, 450 U.S. 40, 67 L.Ed.2d 30 (S.Ct. 1981). On the other hand, "a new trial is a proper remedy when the verdict is found to be against the weight of the evidence". Commonwealth v. Whitman, supra at page 461.

The standard to be applied when assessing a challenge to the weight of evidence imposes a "heavy burden" upon the defendant. Commonwealth v. Staton, 1998 WL 1297080 (Pa. C.P. 1998). A jury's verdict will be overturned only when it is "so contrary to the evidence as to shock one's sense of justice..." Commonwealth v. Schwartz, 615 A.2d 350, 361 (Pa.Super. 1992). Of course, when addressing a weight of evidence claim, it is not our role to substitute our credibility judgment for that of the jury. "[Credibility decisions] are a function that is solely within the province of the finder of fact which is free to believe all, part or none of the evidence." Commonwealth v. Murray, 597 A.2d 111, 114 (Pa.Super. 1991).

(3) Analysis

GARCIA was charged in an Information dated June 6, 2008 with 9 counts. A list of those counts and the facts upon which each was based is as follows:

(1) Count 1 - Delivery of a Controlled Substance - delivery of cocaine on March 9, 2007
(2) Count 2 - Delivery of a Controlled Substance - delivery of cocaine on March 16, 2007
(3) Count 3 - Criminal Conspiracy - conspiracy with MOJICA to deliver cocaine on March 9, 2007 and March 16, 2007
(4) Count 4 - Delivery of a Controlled Substance - delivery of cocaine on July 10, 2007
(5) Count 5 - Delivery of a Controlled Substance - delivery of cocaine on October 29, 2007
(6) Count 6 - Criminal Conspiracy - conspiracy with MOJICA, EMILIO, Angel Rodriguez and Rosalia Marez to deliver cocaine between March 2007 and January 2008
(7) Count 7 - Criminal Use of Communication Facility - use of communication facilities to deliver drugs between March 2007 and January 2008
(8) Count 8 - Corrupt Organization - trafficking of cocaine as a racketeering activity between March 2007 and January 2008
(9) Count 9 - Corrupt Organizations - conspiracy with MOJICA, EMILIO, Angel Rodriguez and Rosalia Marez to traffic cocaine as racketeering activity between March 2007 and January 2008.

The elements of Delivery of a Controlled Substance are as follows:

(1) Possession of a controlled substance by the Defendant; and
(2) Delivery of that controlled substance to another individual.

35 P.S. § 780-113(a)(30).

The elements of Criminal Conspiracy are:

(1) Two or more people must have entered into an agreement;
(2) The parties must have intended to commit a crime; and
(3) One of the conspirators must have done an overt act in furtherance of the conspiracy.

18 Pa.C.S.A. § 903.

The elements of Criminal Use of a Communication Facility are:

(1) The Defendant used a communication facility such as a telephone or cellular telephone; and
(2) The Defendant did so to commit, cause or facilitate a crime.

35 P.S. § 780-113(a)(30).

The elements of corrupt organizations set forth in Count 8 are:

(1) The Defendant must have engaged in two or more actions of criminal activity such as Delivery of a Controlled Substance;
(2) The Defendant's criminal acts must have constituted a "pattern of racketeering activity";
(3) The Defendant must have acted as part of a criminal enterprise; and
(4) The racketeering activity of the Defendant must relate to the criminal enterprise in some way.

18 Pa.C.S.A. § 911(h)(1) and 18 Pa.C.S.A. § 911(b)(3).

The elements of Corrupt Organizations set forth in Count 9 are as follows:

(1) The Defendant and others must have entered into an agreement to create or participate in a criminal enterprise;
(2) The Defendant must be aware of the criminal enterprise and intentionally agree to further its goals;
(3) One of the conspirators had to have committed at least one overt act in furtherance of the conspiracy; and
(4) There must be a finding beyond a reasonable doubt that either GARCIA or MOJICA was guilty of the crime of Corrupt Organizations as a direct actor.

18 Pa.C.S.A. § 911(h)(1) and 18 Pa.C.S.A. § 911(b)(4).

With respect to the crime of Delivering a Controlled Substance under Counts 1, 2, 4 and 5, the facts relating to the incidents on March 9, 2007, March 16, 2007, July 10, 2007 and October 29, 2007 are all set forth in the factual portion of this opinion. In each instance, GARCIA participated personally in the delivery of cocaine. In some instances, he did so via MOJICA, who was described as someone who "worked for" GARCIA (Vol. Ill. N.T. 67-68). On other occasions, GARCIA directly handed the cocaine to JAEN. In each instance, it was crystal clear that GARCIA was the one who was "calling the shots". It was clear that GARCIA was the one who would be financially benefiting from the cocaine that he distributed. As to Counts 1, 2, 4 and 5, more than sufficient evidence existed to justify the jury's verdicts. Moreover, none of those verdicts were against the weight of evidence.

With respect to Criminal Conspiracy charged in Count 3, the information charges at a minimum that GARCIA conspired with MOJICA and EMILIO. There is ample evidence of a conspiracy. For example, JAEN testified that MOJICA "worked for" GARCIA (Vol. Ill. N.T. 67-68). JAEN also testified that EMILIO "helped out" GARCIA in his drug business on occasion (Vol. Ill. N.T. 69-70). With respect to the delivery on March 9, JAEN set up the delivery date and place with GARCIA, but he actually spoke with MOJICA at the time of the delivery (Vol. Ill. N.T. 80-83). Likewise, with respect to the March 16 delivery, JAEN spoke with both MOJICA and GARCIA about the delivery (Vol. Ill. N.T. 26; Exh. 9). On March 16, the physical delivery took place between JAEN and MOJICA (Vol. Ill. N.T. 140-141). However, GARCIA was the one who stated that he was giving JAEN "a full one" - 125 grams of coke (Vol. Ill. N.T. 137; Exh. 9). These facts were more than sufficient to establish the conspiracy charge set forth in Count 3.

Count 6 does overlap somewhat with Count 3 in that the Commonwealth alleges a conspiracy between GARCIA and MOJICA relating to events that occurred in March of 2007.[2] For that reason alone, sufficient evidence exists to establish GARCIA's guilt on Count 6. However, Count 6 progresses further and alleges a conspiracy between GARCIA, EMILIO, Angel Rodriguez and Rosalia Marez between March 2007 and January 2008. Based upon evidence presented, we conclude that sufficient evidence exists to establish the conspiracy with respect to EMILIO. JAEN indicated that GARCIA and EMILIO worked together regarding drug transactions (Vol. Ill. N.T. 69-70). On one occasion, GARCIA told JAEN that he was purchasing a kilo of cocaine from EMILIO (Vol. Ill. N.T. 50). On another occasion, GARCIA stated that he received an ounce of cocaine from EMILIO (Vol. Ill. N.T. 75). On April 13, 2007, JAEN purchased 125 grams of cocaine from EMILIO. He did so at the exact same Exxon gas station near Interstate 81 at which he had previously met with GARCIA and MOJICA (Vol. Ill. N.T. 162; 170). At one point, GARCIA even stated that he returned some cocaine to EMILIO because it looked "too much like flour" (Vol. Ill. N.T. 155). Viewed in the light most favorable to the Commonwealth, we conclude that the above evidence is sufficient to establish a conspiracy between GARCIA and EMILIO. For this reason also, we reject GARCIA's challenge to Count 6.[3]

With respect to the Criminal Use of a Communication Facility charge found in Count 7, the record is replete with references to telephone calls made between JAEN and GARCIA pertaining to drugs. Ironically, GARCIA himself described his cellular telephone as earning "$10, 000.00 per week" in the drug trade (Vol. Ill. N.T. 191). Without question, the elements of Count 7 were established by GARCIA's use of that cellular telephone. We therefore reject GARCIA's challenge to Count 7.

With respect to the Corrupt Organization counts found in Counts 8 and 9, more than enough evidence existed to justify the jury's finding that a pattern of racketeering activity was conducted by GARCIA and others as part of a criminal enterprise. For example, the following was presented:

(1) MOJICA was "employed" by GARCIA to help facilitate his drug distribution business;
(2) GARCIA worked with other individuals, including EMILIO, with respect to the purchasing and delivery of cocaine;
(3) GARCIA stated that he acquired "a lot" of his cocaine in Puerto Rico (Vol. Ill. N.T. 80);
(4) GARCIA stated that he sometimes "cooked" the cocaine himself (Vol. Ill. N.T. 85-86);
(5) GARCIA indicated that he was expecting another gentleman to bring him 10 kilos of cocaine (Vol. Ill. N.T. 138);
(6) GARCIA indicated that he was obtaining 10 kilos of cocaine from Puerto Rico (Vol. Ill. N.T. 155);
(7) GARCIA talked about sums of money totaling 14 million dollars when he described his Puerto Rico cocaine connection (Vol. Ill. N.T. 155);
(8) GARCIA indicated that his cellular telephone made "$10, 000.00 per week" from drug trafficking because it contained the number of his customers (Vol. Ill. N.T. 191);
(9) GARCIA indicated that he had a client who sold $110.00 bags of cocaine per day and made $7, 000.00 per week (Vol. Ill. N.T. 192);
(10) GARCIA spoke about the arrival of 10 kilos of cocaine that would generate $80, 000.00 in sales (Vol. Ill. N.T. 195);
(11) GARCIA stated that a woman by the name of "Mary" wanted to purchase 8 kilos of cocaine from him (Vol. Ill. N.T. 197);
(12) GARCIA stated that he was sending money to the Dominican Republic in order to get it out of the United States (Vol. Ill. N.T. 22);
(13) GARCIA used individuals like JAEN to distribute cocaine to those who were "lower on the drug distribution ladder" than himself;
(14) On occasion, GARCIA would "front" the cocaine to JAEN, expecting that JAEN would pay for the cocaine at a later time. This establishes a routine "accounts receivable" type of business relationship between the two;
(15) GARCIA would use individuals such as MOJICA to actually deliver the cocaine he wanted to sell;
(16) On one occasion where GARCIA made a direct hand-to-hand delivery of cocaine to JAEN, he became upset when JAEN was late because he did not wish to individually possess the cocaine for any longer than was necessary (Vol. Ill. N.T. 24). This implied that GARCIA's normal business practice would be for others to possess and deliver the cocaine for him;
(17) With respect to this case alone, the Commonwealth proved by electronic surveillance that GARCIA delivered 437 grams of cocaine;
(18) GARCIA used the nickname "Cano". This was similar to other high level dealers described in this case as using names such as "Gallo" and "Rooster". Use of nicknames made it more difficult for subordinates - and ultimately for police - to identify these dealers.

The above represents more than sufficient evidence to justify the jury verdicts of guilty on Counts 8 and 9. We therefore reject GARCIA's challenge to the sufficiency and weight of evidence pertaining to the Corrupt Organization charges.

(B) EXCESSIVE SENTENCE

The jury found GARCIA guilty of all nine counts lodged against him. A chart reflecting those counts, the mandatory minimum sentences applicable thereto, and our ultimate sentence is set forth below:

Count

Charge

Mandatory Minimum

Sentence

1

Delivery of Controlled Substance

1 years

1-3 years

2

Delivery of Controlled Substance

7 years

7-14 years

3

Criminal Conspiracy Substance

n/a

3-6 years

4

Delivery of Controlled Substance

7 years

7-14 years

5

Delivery of Controlled

7 years

7-14 years

6

Criminal Conspiracy

7 years

Merges with Count 3

7

Criminal Use of Communication Facility

n/a

9 mos.-2 years

8

Corrupt Organization

n/a

1-4 years

9

Corrupt Organization

n/a

1-3 years

Of key import to GARCIA, we directed that Count 4 be served consecutive to Count 2, Count 5 be served consecutive to Count 4, Count 3 be served be served consecutive to Count 5 and Count 8 be served consecutive to Count 3. All other sentences were to be served concurrently with the sentence to be served on Count 2. The net effect of the above was to provide a total sentence for GARCIA of 25 to 52 years.

"Sentencing is a matter vested in the sound discretion of the sentencing judge." Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.Super. 2001). A sentencing judge has "broad discretion in choosing the range of permissible confinements which best suits a particular defendant and the circumstances surrounding his crime". Commonwealth v. Moore, 617 A.2d 8, 12 (Pa.Super. 1992). Although Trial Judges have broad discretion with respect to sentencing, that discretion is not unfettered. Commonwealth v. Gause, 659 A.2d 1014 (Pa.Super. 1995). For example, we are required to consider Pennsylvania's Sentencing Guidelines. 42 Pa.C.S.A. § 9721(b). Although these guidelines are not mandatory, they must be "considered and, to insure that such consideration is more than mere fluff, the Court must explain its reasons for departure from them". Commonwealth v. Walls, 926 A.2d 957, 964 (Pa. 2007).

To successfully challenge a discretionary aspect of the Judge's sentence, a defendant must establish a "substantial question" that the sentence imposed was not appropriate under the sentencing code. 42 Pa.C.S.A. § 9781(b); Commonwealth v. Marts, 889 A.2d 608 (Pa.Super. 2005). "The determination of whether a particular issue raises a substantial question is to be evaluated on a case-by-case basis." Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.Super. 2004). "In order to establish a substantial question, the appellant must show actions by the Trial Court inconsistent with the sentencing code or contrary to the fundamental norms underlying the sentencing process." Commonwealth v. McAfee, supra at 274.

Our appellate courts have clearly articulated what does not constitute a "substantial question" relative to sentencing. Most pertinent to this case is the body of law that refuses to declare the imposition of consecutive sentences to be a "substantial question". In Commonwealth v. Marts, supra, the Superior Court summarized this law and stated:

Long standing precedent of this Court recognizes that 42 Pa.C.S.A. § 9721 affords the sentencing court discretion to impose its sentence concurrently or consecutively to other sentences being imposed at the same time or to sentences already imposed. Any challenge to the exercise of this discretion ordinarily does not raise a substantial question.

Id. at 612 (citations omitted). In affording broad discretion to Trial Courts with respect to imposing consecutive or concurrent sentences, our appellate courts have decried the notion that criminal defendants are entitled to "a volume discount" as a result of committing multiple crimes instead of just one. Commonwealth v. Hoag, 665 A.2d 1212 (Pa.Super. 1985).

In this case, the sentence we imposed upon GARCIA was undeniably severe. However, each individual sentence was within the standard range applicable to that offense or was in compliance with a mandatory sentence created by Pennsylvania's General Assembly. As to any individual count, GARCIA has no legal basis whatsoever to complain. His only possible recourse is to complain about our decision to impose sentences consecutively rather than concurrently.

Our decision to run various sentences consecutively rather than concurrently was based upon the following factors:

(1) Each of the deliveries committed by GARCIA represented a separate act.
(2) Three of the four deliveries involved 125 grams of cocaine and the fourth involved 62 grams of cocaine. GARCIA knew, or should have known, that deliveries in this amount would adversely affect the lives of hundreds of users and their families. Moreover, the scourge of drug addiction created by distributers such as GARCIA adversely affect everyone in a community who is affected by the crime that almost always accompanies drug addiction.
(3) GARCIA's drug trafficking scheme involved enormous sums of money. GARCIA benefited financially to the point where he was able to send money to the Dominican Republic to prepare his nest egg for the future. The risk of punishment to GARCIA must reflect the extent of the monetary reward he stood to gain from his illegal activity.
(4) Other than the persons referenced as "Gallo" and "Rooster" from whom GARCIA purchased his drugs, every other person referenced during the trial was beneath GARCIA within the drug distribution hierarchy. With respect to the drug distribution scheme about which we heard at trial, GARCIA was the king pin.
(5) At no time during this entire process did GARCIA express remorse. Even at sentencing, GARCIA has the chutzpah to proclaim innocence despite being caught on tape bragging about the purchase and sale of drugs in kilo amounts.
(6) GARCIA's drug operation extended beyond the borders of the United States. At numerous occasions during his tape-recorded conversations, GARCIA spoke about his drug ties to Puerto Rico and the Dominican Republic.[4]

Based in part upon the foregoing factors and upon everything that we heard and saw at trial, we concluded that GARCIA should not be afforded with a "volume discount" as a result of his drug deliveries. In addition, we concluded that GARCIA was the "general" of an extensive cocaine distribution organization. As such, he earned a significant amount of money, some of which he shipped to the Dominican Republic. We concluded that GARCIA's status as the "general" of the drug distribution business earned him a consecutive sentence on the Corrupt Organizations charge.

While severe, the sentence we imposed upon GARCIA fit the nature and extent of his conduct. Each individual sentence was within the sentencing range guidelines or was in compliance with a mandatory sentence. Our decision to impose consecutive sentences for each of GARCIA's actions - all of which were significant in their own right - was within our discretion. By this opinion, we reaffirm our sentencing decision.

C. JURY TAINT INVESTIGATION

Following trial but before sentencing, a defense attorney for one of GARCIA's co-defendants received communication from a woman who identified herself as Martie Manno. Ms. Manno then wrote a letter. This letter alleged that Ms. Manno overheard a juror having an improper conversation with persons in a courthouse hallway about the trial of the above-referenced matter. The letter implied that the juror had already reached a decision about the Defendant's guilt even though the trial had not concluded at that point in time. (See Exh. 1 to hearing of 12/23/08).

Upon receipt of Ms. Manno's letter, we established a procedure to test the veracity of Ms. Manno's allegations. Initially, we scheduled a hearing for December 23, 2008 in order to receive Ms. Manno's testimony. Following that hearing, we conducted a second hearing to receive testimony from the juror identified by Ms. Manno and her husband. That hearing occurred on January 15, 2009.

At the initial hearing of December 23, 2008, Ms. Manno disclosed that she was related to EMILIO (12/23/08, N.T. 4). She stated that she was present in court to hear closing arguments on November 6, 2008 (12/23/08, N.T. 5). While she was waiting for the trial to begin, Ms. Manno stated that she overheard a conversation involving a woman and two gentlemen (12/23/08, N.T. 6). One of the gentlemen introduced himself as the husband of the woman (12/23/08, N.T. 7). The gentleman who identified himself as the woman's husband described the above-captioned trial as a "big case" involving "big drug dealers". He stated "This case involves a lot of money and a lot of drugs." (12/23/08, N.T. 7).[5] Ms. Manno indicated that the woman made no response when her husband uttered these remarks (12/23/08, N.T. 8).

Ms. Manno entered court after overhearing the conversation described above. When court opened, she recognized one of the jurors as the woman whose husband had made the remarks that were summarized above (12/23/08, N.T. 8). She stated that the woman was sitting "against the wall furthest to the left in the second row" (12/23/08, N.T. 9). Two weeks after the jury rendered a verdict of guilty against all Defendants, Ms. Manno decided to write a letter outlining what she said she heard (12/23/08, N.T. 11). That letter eventually found its way to the Court.

Following the testimony of Ms. Manno, this Court concluded that enough evidence had been presented to justify questioning of the juror who had been identified by Ms. Manno. Based upon the location in the jury box described by Ms. Manno, the juror was identified and summoned.[6] Physically, this woman fit the description given by Ms. Manno.

We instructed the Court Administrator that neither he nor anyone in his office was to substantively speak with the juror about the subject matter of our inquiry. We stated: "When this woman comes in, she is going to be hit for the first time with these questions...any of this information that we're going to be hearing from her [will be] totally unrehearsed, totally unprepared. She will say what she says, we will go from there. But I am not going to prep her. I am going to ask [Court Administrator] Mr. Wingert not to prep her." (12/23/08, N.T. 22-22.)[7]

We were also loathe to adopt a procedure by which lawyers could directly question a juror. Citizens are already reluctant to serve on jury duty. If citizens learn and come to fear that they could be individually questioned under oath by lawyers about events surrounding their service as a juror, a chilling effect on citizens' willingness to serve as jurors could result. When a citizen agrees to serve on a jury, we believe that we have the duty to insulate that juror as much as possible so long as we can do so without violating a Defendant's due process rights.

Even though we would not allow the attorneys to personally question the juror, we recognized the importance of allowing each party's lawyer to have the right to formulate pertinent questions that could be of relevance. Therefore, we permitted the lawyers for all the parties to submit written questions to the Court. We also afforded the parties with the opportunity to object to any opposing party's questions. Based upon what we received from the lawyers, we drafted a list of questions and disseminated them to all counsel. It is this list of questioned that was used when we questioned the juror and her husband in open court.

On January 15, 2009, we summoned the juror identified by Ms. Manno and her husband. Both individuals graciously agreed to appear. We placed each under oath. One at a time - and outside the presence of each other - we asked the questions that had been formulated based upon the suggestions of counsel. Both the juror and her husband vehemently denied having participated in any conversation remotely similar to the one described by Ms. Manno. In fact, the husband of the juror indicated that he was never even present inside the Lebanon County Courthouse at any time during his wife's service as a juror.

We found both the juror and her husband to be credible. While we are not prepared to declare that Ms. Manno lied in an effort to protect a relative, we will give her the benefit of the doubt by concluding that she must have overheard a conversation between three people who were not participants in the above-referenced trial. Regardless, we concluded and still conclude that the allegations of Ms. Manno were not credible and cannot impugn the verdict of the jury.

In summary, we at no time ignored the serious allegations of potential jury taint as and when they were presented to us. To the contrary, we allowed counsel to fully explore the allegations of taint by questioning Ms. Manno under oath. While we did not permit counsel to directly question a juror or her husband, we did involve counsel in a procedure by which the juror and her husband were questioned under oath about the potential taint. When the juror and husband were questioned, they each emphatically denied the allegations proffered by Ms. Manno. We found both the juror and her husband to be credible. We concluded that Ms. Manno was not. Therefore, we factually rejected allegations of jury taint. By so doing, we did not err. The Defendant's appeal issue based upon the issue of jury taint will therefore be rejected.

D. EVIDENCE OF JAEN'S USE OF ALIASES

At two locations in the record, counsel for Defendants sought to "impeach" JAEN with evidence that he used aliases and multiple identities during his time as a drug dealer (See N.T. 38; 99-100). Before we address the substance of our ruling, we need to place our ruling in its proper context.

Prior to trial, we conducted a discussion with counsel regarding impeachment of JAEN. We allowed use of JAEN's prior record and the fact that he was previously in prison to be admitted as evidence of his motive for cooperation (N.T. 26-31). In part because of this ruling, the following evidence was presented about JAEN:

(1) JAEN sold drugs to a confidential informant working with DILLER. As a result, a search warrant was executed at JAEN's house and 23 ounces of cocaine, 17 pounds of pot and several thousand dollars were seized (N.T.10-11);
(2) JAEN had a prior felony record (N.T. 37; 62);
(3) Regarding his prior felony charges, JAEN served 3 to 10 years in prison (N.T. 37);
(4) Because of JAEN's prior felony record, an enhanced sentencing punishment scheme would apply to the charges that were filed as a result of the search warrant executed at his home (N.T. 62);
(5) JAEN sold drugs for 8 to 10 years prior to his arrest (N.T. 60). He dealt in amounts of cocaine measured in ounces and amounts of marijuana measured in pounds (N.T. 61);
(6) JAEN worked as a confidential informant for the Attorney General's Office because he wanted to reduce his sentence in order to minimize the time he would spend away from his children (N.T. 13, 63).

Within the context of the above, evidence of JAEN's use of multiple identities was neither necessary nor relevant. The above information provided GARCIA and his co-defendants with a great deal of ammunition to challenge JAEN's motive and his credibility. Use of aliases on top of the above information would have added little, if anything, to the credibility arguments of the Defendants.

More importantly, the information regarding JAEN's aliases was simply not relevant to this case. "Impeachment" evidence has been defined as evidence that is relevant to dispute, disparage, deny or contradict a witness' testimony. See Feingold v. Southeastern Pennsylvania Transit Authority, 488 A.2d 284 (Pa.Super. 1985). Generally speaking, the credibility of any witness depends upon his or her powers of perception, capacity to remember, ability to communicate accurately, and whether his or her testimony could be affected by a bias or motive that could impugn the witness' honesty or integrity. See, e.g. McCormick On Evidence § 44 (4th 1992); Commonwealth v. Gwaltney, 442 A.2d 236 (Pa. 1982); Commonwealth v. Hamm, 378 A2.d 1219 (Pa. 1977). JAEN's past use of aliases does not fall within any of the above categories. To be sure, JAEN's past criminal history and his pending criminal charges could affect his motive to testify. We perceive no circumstances under which his prior use of aliases would similarly affect his motive to testify. Likewise, JAEN's prior use of aliases were not and could not be reasonably linked to his ability to perceive, remember or communicate accurately. In short, JAEN's prior use of aliases was not relevant to JAEN's credibility and thus its use would not constitute appropriate impeachment. In determining whether proffered cross-examination constitutes impeachment, the Trial Court is vested with broad discretion. Commonwealth v. Bricker, supra; Commonwealth v. Bailey, 511 A.2d 180 (Pa.Super. 1986). JAEN's use of aliases while in the drug trade was neither relevant nor necessary to GARCIA's impeachment efforts. Accordingly, we did not err by excluding such evidence. The Defendant's alleged error on this ground will also be rejected.

E. DENIAL OF CROSS-EXAMATION REGARDING JAEN'S PRIOR RECORD

GARCIA's last claim of error does not accurately portray what occurred at trial. GARCIA implies that we prevented him from cross-examining JAEN regarding his motive to cooperate with the Attorney General's office and provide testimony. Nothing could be further from the truth.

In a pre-trial colloquy, we heard argument from both sides pertaining to the extent to which JAEN could be cross-examined on his prior record. In reading the entire colloquy, it is apparent that we agreed with the Defendant's position more than we did with that of the Commonwealth (NT. 26-31). Specifically, we permitted testimony regarding the fact that JAEN had been in prison as a result of prior felony offenses. We stated: "He's [JAENJ been in prison. He doesn't want to go back so he has a motive." (N.T. 31). We also permitted testimony of JAEN's prior record even though that record did not involve crimen falsi offenses. We reasoned that JAEN's prior record subjected him to greater punishment for his pending charges and that this should be revealed to the jury as relevant to JAEN's motive to cooperate and testify (N.T. 29-30). Based upon these rulings, all of the evidence outlined at page 35 above was presented and each of the co-defendant's attorneys vigorously challenged JAEN's credibility using such evidence. Additional details of JAEN's drug delivery history would have added nothing to the Defendants' credibility challenge of JAEN.

We did not err with respect to the manner by which we handled JAEN's prior record. We recognized the importance to the Defendants of being able to establish JAEN's motive to testify. Over the objection of the Commonwealth, we permitted the introduction of more than enough evidence through which the Defendants could vigorously argue that JAEN lied because he had a powerful motive to do so. Accordingly, GARCIA's last argument set forth in his Statement of Errors Complained of on Appeal will also be denied.

IV. CONCLUSION

Based upon the foregoing, we reach the following conclusions with respect to GARCIA's post-sentence motions:

(1) More than sufficient evidence existed to justify each of the jury's nine guilty verdicts.
(2) None of the jury's verdicts were against the weight of evidence.
(3) The Court did not err by imposing consecutive mandatory sentences in order to arrive at a total sentence of 25 to 52 years.
(4) The Court appropriately addressed and decided the post-trial issue of jury taint.
(5) The Court did not err by refusing to admit evidence of JAEN's prior use of aliases.
(6) The Court permitted GARCIA to fully cross-examine JAEN in order to develop his theory that JAEN had a motive to lie.

Having concluded that none of GARCIA's post-sentence issus have any merit, we will deny each of them. Having done so, we give the above-referenced case to the Pennsylvania Superior Court for its analysis of GARCIA's convictions.


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