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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NON-PRECEDENTIAL DECISION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. ...


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