J-S13009-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                             IN THE SUPERIOR COURT OF
                                                                PENNSYLVANIA
                            Appellee

                       v.

ALEJANDRO RUIZ CABRERA,

                            Appellant                        No. 1071 EDA 2015

      Appeal from the Judgment of Sentence Entered December 18, 2014
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0008513-2013


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                                 FILED APRIL 03, 2017

        Appellant, Alejandro Ruiz Cabrera, appeals from the judgment of

sentence of an aggregate term of 4 to 8 years’ incarceration, followed by 10

years’    probation,    imposed      after     a   jury   convicted   him   of   corrupt

organizations, 18 Pa.C.S. § 911(b)(1), dealing in unlawful proceeds, 18

Pa.C.S. § 5111(a)(1), criminal use of a communication facility, 18 Pa.C.S. §

7512(a), possession with intent to deliver a controlled substance (PWID), 35

P.S. § 780-113(a)(3), and criminal conspiracy to commit PWID, 18 Pa.C.S. §

903(a). We affirm.

        We need not summarize the complicated facts and procedural history

of this case, as the Honorable Thomas P. Rogers of the Court of Common

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S13009-17


Pleas of Montgomery County sets forth a lengthy and detailed discussion of

those matters in his Pa.R.A.P. 1925(a) opinion.        See Trial Court Opinion

(TCO), 6/21/16, at 1-18. We only note that on appeal, Appellant raises the

following three issues for our review:

      (1). Whether the [trial] court committed an error of law and/or
      abuse of discretion when it denied [Appellant’s] post[-]sentence
      motion for a new sentence because the sentence was unduly
      harsh and excessive?

      (2)[]. Whether the [trial] court committed an error of law and/or
      abuse of discretion when it denied [Appellant’s] motion at trial
      and in [his] post[-]sentence motion[] for a new trial where the
      verdict was against the weight and sufficiency of [the] evidence
      and the Commonwealth failed to present sufficient evidence for
      the trier of fact to find [Appellant] guilty of the crimes charged?

      [(3)]. Whether the [trial] court committed an error of law and/or
      abuse of discretion when it allowed [evidence of] prior
      unadjudicated acts, via testimony of Trooper Martinez, alleged to
      have occurred in Berks County where Appellant would have had
      to waive his Fifth Amendment rights and in violation of Due
      Process to defend himself in Montgomery County having not yet
      been adjudicated in Berks County?

Appellant’s Brief at 5 (unnecessary capitalization omitted).

      We have reviewed the certified record, the briefs of the parties, and

the applicable law. Additionally, we have reviewed Judge Rogers’ thorough

and well-crafted opinion.         We conclude that Judge Rogers accurately

disposes of the issues presented by Appellant.        We find no need to add

anything   further   to   Judge    Rogers’   well-reasoned   analysis,   especially

considering the minimally developed, and legally unsupported, arguments




                                       -2-
J-S13009-17



that Appellant presents in his brief to this Court.1   Accordingly, we adopt

Judge Rogers’ opinion as our own and affirm Appellant’s judgment of

sentence on that basis.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/3/2017
____________________________________________


1
  Indeed, we could conclude that Appellant has waived his first two issues for
our review, based on his failure to provide any meaningful discussion in
support of those claims. For instance, in regard to his challenge to the
discretionary aspects of his sentence, Appellant only briefly summarizes
certain statements made by him and the court at the sentencing proceeding,
and then concedes that he “cannot specifically identify a manifest abuse of
discretion” by the court in fashioning his term of incarceration. Appellant’s
Brief at 11. Additionally, in his second issue challenging the sufficiency and
weight of the evidence to support his convictions, Appellant provides only
four sentences of discussion, cites no legal authority, and does not even
state which specific offense(s), or element(s) thereof, that the
Commonwealth failed to prove. Accordingly, we could deem Appellant’s first
two issues abandoned or waived. See Commonwealth v. Hardy, 918 A.2d
766, 771 (Pa. Super. 2007) (directing that an appellant must “present
arguments that are sufficiently developed for our review” and support those
arguments “with pertinent discussion, … references to the record and with
citations to legal authorities[;]” where an appellant fails to meet these
requirements, thus “imped[ing] our ability to conduct meaningful appellate
review, we may dismiss the appeal entirely or find certain issues to be
waived”).




                                           -3-
J-S13009-17




              -4-
                    IN THE COURT OF COMMON PLEAS OF lVIONTGOMERY                           COUNTY,
                                        PENNSYLVANIA
                                      CRIMINAL DIVISION




             COMMONWEALTH OF PENNSYLVANIA                             : SUPERIOR COURT
                                                                      : NO. 1071 EDA 2015
                                       v.
}'·\.
                                                                      : TRIAL COURT
IT}
            ALEJANDRO RUIZ-CABRERA                                    : NO. 8513-2013




            ROGERS, J.                                                 JUNE 21, 2016




                                                    OPINION


            I.         INTRODUCTION

                       Alejandro Ruiz-Cabrera ("Appellant") has appealed to the Superior

            Court of Pennsylvania             ("Superior Court") from his judgment         of sentence

            following a three-day jury trial resulting in a verdict of guilty on one (1)

            count of corrupt organizations,1 two (2) counts of possession with intent to

            deliver a controlled. substance?           two (2) counts of criminal conspiracy to

        commit possession with intent to deliver a controlled substance.> one ( 1)

        count of dealing in unlawful proceeds" and one (1) count of criminal use of


        1
                 18 Pa.C.S.A. § 91 l(b)(l).
        2
             35 P.S. § 780-l 13(a)(30).
                                                                                 ··- "<,
        3
                 18 Pa.C.S.A. § 903(a).
        4
             18 Pa.C.S.A. § 511 l(a)(l).
             a communication         facility" for his role   in   a narcotics operation spanning

             two counties.
1;:;,;
rn
                       The court sentenced Appellant to not less than three (3) years nor
1,)
             more than six (6) years of incarceration on each of the two (2) convictions

             for criminal conspiracy to commit possession with intent to deliver, to run

             concurrent      to one another,      with a consecutive        ten-year   probationary

             period; a concurrent         term of not less than fifteen ( 15) months nor more

             than thirty (30) months on the conviction for corrupt organizations, with a

             ten-year consecutive term of probation to run concurrent              to the criminal

             conspiracy sentences; a concurrent            term of not less than one ( 1) nor more

             than two (2) years of incarceration on one of the convictions for possession

             with intent to deliver a controlled substance            with a five-year consecutive

             term of probation, the sentence to run concurrent              with the sentence on

             corrupt     organization,     a consecutive     term of one ( 1) to two (2) years'

          incarceration       with a five-year probationary          period on the conviction for

          dealing in unlawful proceeds, and a determination                of guilt without further

         penalty on the remaining              count for possession      with intent to deliver a

         controlled substance             and the count for criminal use of a communication

         facility.

                   The undersigned          granted the Commonwealth's         motion to nol pros

         counts 2, 3, 9, 10, 11, 13, 14, 15, 16, 17 and 18. In essence, the court

         imposed an aggregate sentence of four (4) to eight (8) years' incarceration


         5
              18 Pa.C.S.A. § 75 l 2(a).


                                                       2
           to be followed by ten (10) years of probation, all to run consecutive to the
((l
           sentence    imposed     in Berks County in a corresponding            case wherein

           Appellant had pled guilty to other narcotics offenses.          Appellant's appeal

,,         merits no relief.


,,,.       II.    FACTS AND PROCEDURAL HISTORY
m
                 The relevant facts and procedural history underlying this appeal are

           as follows.      Detective Erick Echevarria          of the Montgomery      County

           Detective     Bureau,     acting    undercover       in   an   ongomg     narcotics

           investigation," met co-defendant Jose DeJesus             Montilla   ("Montilla") on

           December      17, 2012, in Mount Penn, Berks County, Pennsylvania,                to

       discuss the quantity of cocaine and met:hamphetamine                Montilla would be

       able to sell to Detective Echevarria.               (Notes of Testimony ("N.T.") Trial

       9/ 16/ 14, at 15-16).        In particular,   Detective Echevarria told Montilla that

       he was interested           in obtaining three (3) to four (4) pounds        of crystal

       methamphetamine             a week if Montilla could handle that amount.         (Id. at

       16). Montilla told Detective Echevarria that he could indeed handle that

       amount but that he would have to talk to his "brother" first.               (Id. at 17).

       On that date, Montilla sold Detective Echevarria an ounce (28 grams)


       6
          A number of law enforcement agencies were involved in the investigation of this drug
       trafficking organization, including the Montgomery County District Attorney's Narcotics
       Enforcement Team, the Berks County District Attorney's Narcotics Enforcement Team,
       the Federal Drug Enforcement Administration (DEA), the United States Department of
       Homeland Security, Immigration and Customs Enforcement and Removal Operations,
       Exeter Township Police Department, Douglass Township Police Department and the
       Pennsylvania State Police. (Notes of Testimony ("N.T.") Trial 9/16/14, at 39; N.T.
       Sentencing 12/18/14, at 10-1 I; Affidavit of Probable Cause, filed 10/7 /13, at 5) .

                                                     ..,
                                                     _)
        of crystal methamphetamine           for one thousand        eight hundred       dollars

        ($1,800.00). (Id.).
rn             Detective Echevarria met with Montilla again on January                 25, 2013
'


,.,.    at Zerns Farmers Market in Montgomery County.                  (Id. at 23).    Montilla

        mentioned that he had eight (8) ounces of cocaine available for sale.                (Id.
,,,.
tn      at 25-26). Detective Echevarria told Montilla that he was concerned with

        the quality of the cocaine and that what Detective Echevarria was really

        interested in was obtaining crystal methamphetamine.              (Id. at 25). As the

       pair walked around Zerns Farmers Market, Montilla was on his cell phone

       talking with someone.          (Id.   at 26).    Montilla explained       to Detective

       Echevarria     that    Montilla had people there with him.             (Id.).    One of

       Mantilla's concerns       was that     the undercover       detective was with law

       enforcement.     (Id. at 22). As they rounded a corner at the market, the pair

       came upon two Hispanic males.            (Id. at 27). Detective Echevarria shook

       the hand of both individuals and noted that one of them sat on a bench

       talking on the phone         to someone       else during     the encounter.        (Id.).

       Detective Echevarria recognized the other individual as co-defendant Juan

       Carlos Morales-Soria       («Morales-Soria").     (Id.).    As Detective Echevarria

       shook Morales-Soria's       hand in leaving, Morales-Soria slipped Detective

       Echevarria     a small bag containing         a sample of cocaine.         (Id. at 28).

       Detective Echevarria was instructed to contact Montilla to place an order.

       (Id. at 30).




                                                 4
                   Later that same afternoon, Detective Echevarria contacted Montilla

         on Mantilla's cell phone to place an order for two (2) ounces of cocaine.

         (Id.).    Montilla told Detective Echevarria that someone else would meet

         him at Zerns Farmers Market.           (Id. at 31).     Morales-Soria subsequently

        contacted Detective Echevarria and they agreed to meet at Zerns.                  (Id.).
1··'·
rn       Morales-Soria asked Detective Echevarria for a description of his car and

        told Detective Echevarria that he was in a black Ford Expedition. (Id.).             As

        Detective Echevarria sat in the parking lot at Zerns, Morales-Soria entered

        Detective Echevarria's      undercover vehicle and sat next to the Detective.

        (Id. at 32). The pair agreed to a price of two thousand dollars ($2,000.00)

        for the two (2) ounces of cocaine.        (Id.).    As Morales-Soria sat in the front

        passenger seat, he took apart an energy drink can that he had brought

        with him and removed the cocaine from a false compartment                  in the can.

        (Id.).     Morales-Soria told Detective Echevarria          that they could get him

        whatever quantity of cocaine or methamphetamine                that he wanted, but to

        go through      Montilla to place an order.            (Id. at 32, 35).    Because    of

        Mantilla's concern that Detective Echevarria may be law enforcement, he

        did not contact Montilla for several months.           (Id. at 38).

                  In or around    June    of 2013, Pennsylvania         State   Police Trooper

        Geraldo Martinez became actively involved in an ongoing investigation

        concerning      a   narcotics    organization      known    to be trafficking    large

        quantities of crystal methamphetamine              in Reading, Berks County and the

        surrounding     areas.   (Id. at 139). Specifically, on .June 10, 2013, Trooper



                                                   5
             Martinez contacted       Appellant on Appellant's       primary cell phone," having

             previously received information that Appellant was one of approximately
,a
rn          four (4) main players in this organization.            (Id. at 140). Trooper Martinez
 -.
I\}
,.,..       then drove to the garage on the 400 block of North 9th Street in the city of

            Reading where Appellant worked as a mechanic                 and asked to purchase
, .•.
m           fourteen    (14) grams of crystal methamphetamine.                  (Id. at 141).   After

            Appellant made a phone call in Spanish to his "boss" to obtain approval to

            negotiate    the price,     eventually    the pair came to an agreement              that

            Trooper Martinez would pay Nine Hundred Dollars                      ($900.00) for the

            methamphetamine           and Appellant    would provide a sample of a higher

            grade methamphetamine          at no additional cost. (Id. at 142-45).

                  Appellant        told Trooper Martinez that the methamphetamine                was

            located across the street and that he would need some time to retrieve it.

            (Id. at 141).   Trooper Martinez left the garage and received                a call a few

        minutes later from Appellant,            who told the Trooper to meet him on the

        900 block of Green Street in Reading.                (Id. at 145-46).     Trooper Martinez

        spotted        Appellant     walking   in an   alleyway,     at which        point Appellant

        entered        and sat in Trooper       Martinez's    front passenger         seat and they

        exchanged        the fourteen (14) grams of crystal methamphetamine                 for $900

        in prerecorded        U.S. currency.     (Id. at 146).     No money was exchanged for

        the sample that Appellant provided at the same time.                (Id.).
        7
            Both Trooper Martinez and Detective Echevarria called or sent text messages to
        Appellant's primary cell phone number (484) 557-3652 to arrange narcotics buys. (N.T.
        Trial 9/16/14, at 105, 140). Appellant also provided Trooper Martinez with a secondary
        phone number of ( 484) 529-7983.  (Id. at 155).


                                                       6
              Trooper Martinez contacted Appellant on his cell phone agam on
l}J
       July 10, 2013, to purchase more crystal methamphetamine.                (Id. at 146-

       147). Trooper Martinez again met Appellant at the garage in the 400 block

1·'    of North 9th Street and placed an order for another fourteen (14) grams of

       crystal methamphetamine.           (Id. at 147-148).      Trooper Martinez left the

rn     area to await Appellant's call that he had the "tires" for the Trooper to

      come and examine.         (Id. at 149). When the Trooper arrived, Appellant

      produced a small white plastic bag containing crystal methamphetamine

      from a secret compartment           inside of an Arizona Tea can.       (Id. at 150).

      Trooper      Martinez   paid Appellant        Nine Hundred     and   Eighty Dollars

      $980.00 in prerecorded U.S. currency for the crystal methamphetamine               in

      that plastic bag and left. (Id.).

             On July 31, 2013, Trooper Martinez called Appellant on Appellant's

      cell phone to place another order for crystal methamphetamine.                (Id. at

      150-51).     Trooper Martinez went to the same garage to meet Appellant,

      only this time Appellant told Trooper Martinez that he only had the higher

      grade crystal methamphetamine          available to sell to the Trooper, a sample

      of which Appellant had already provided.           (Id. at 151-52). The two men

      agreed on a price. (Id.).    Again, Appellant called Trooper Martinez to come

      back to the garage to look at the "tires" when Appellant had the narcotics

      available.     Again, Appellant      pulled    a plastic    bag containing    crystal

      methamphetamine         out of a hidden compartment          in an Arizona Tea can

      and gave it to Trooper Martinez in exchange                for One Thousand    Forty



                                                7
         Dollars ($1,040.00) in prerecorded currency.             (Id. at 152-153).8      When
en       Trooper Martinez expressed his amusement            over the compartment         in the

Ui       tea can, Appellant pointed to an Aqua Fina water bottle sitting atop a

         toolbox which Appellant explained also had a concealed compartment

         underneath   the label. (Id. at 153-54).

               After a break in communication of approximately seven (7) months,

         Montgomery County Detective Echevarria contacted Montilla on August 6,

         2013, to inquire about purchasing more crystal methamphetamine.                  (Id. at

         38). Detective Echevarria and Montilla discussed a sale of at least one ( 1)

     pound of crystal methamphetamine             to take place on August 12, 2013.          (Id.

     at 39). However, on the morning of August 12, 2013, Detective Echevarria

     received a phone call from Montilla, who said his boss now wanted to

     provide just a sample first. (Id.).

              The two men engaged in a back and forth discussion concerning the

     location where someone would meet Detective Echevarria                       because    the

     Detective declined       to move more than           once.      (Id. at 40).     Detective

     Echevarria then received a call from Morales-Soria, who also tried to get

     Detective Echevarria to move to a third location approximately forty (40)

     minutes     away, but Detective Echevarria           refused.     (Id. at 41).     Finally,


     8
        The Commonwealth charged Appellant separately in Berks County for the offenses
     committed solely in Berks County. See Commonwealth v. Alejandro Ruiz-Cabrera, Berks
     County Docket No. CP-06-CR-0000031-2014.             Eventually, Appellant entered an open
     guilty plea to three (3) counts of delivery of a controlled substance under 35 P.S. § 780-
     113(a)(30). The Honorable Stephen B. Lieberman sentenced Appellant to incarceration for
     an aggregate period of not less than fifteen ( 15) months nor more than ten ( 10) years. Id.



                                                  8
      Montilla told Detective Echevarria to stay put, that someone would come

      to him and Montilla gave Detective Echevarria              Appellant's cell phone

      number.    (Id. at 42).

             Detective Echevarria called Appellant's cell phone and Appellant told

      Detective Echevarria that he was on his way and would meet the Detective

rn   in the parking lot at the McDonald's in Gilbertsville, near Zerns Farmers

     Market. (Id. at 43, 77). Appellant arrived in the parking lot as a front-seat

     passenger    in a black pickup truck.        (Id. at 44; Trial Exhibits C-7, C-8).

     Appellant exited the pickup truck and entered the front passenger side of

     Detective Echevarria's undercover vehicle. (Id. at 46). The two men talked

     about the confusion, and Appellant explained that Detective Echevarria

     would continue to place orders through Montilla in the future but that

     }\ppellant would deliver the narcotics.           (Id. at 46) ... Appellant provided

     Detective Echevarria       samples   of crystal    methamphetamine       in two (2)

     plastic bags that Appellant removed from a secret compartment                in the

     bottom of a water bottle. (Id.).     One of the bags contained a sample of the

     higher grade, darker methamphetamine              and the other bag contained      a

     sample of the clearer crystal methamphetamine.           (Id. at 4 7). Appellant did

     not ask for any money, and Detective Echevarria did not give Appellant

     any money for the samples.       (Id. at 48). After Appellant exited the vehicle,

     Detective Echevarria       called Montilla and told him that everything went

     okay. (Id. at 49).




                                              9
  ..
 !'•



                Detective Echevarria next telephoned Montilla on August 27, 2013,

         to    conclude     the    deal     to    purchase        at     least    one     ( 1)     pound        of

        methamphetamine.            Montilla explained that the price had risen from

1-·'·   twenty-seven      thousand        dollars ($27 ,000.00) to thirty thousand                     dollars

        ($30,000.00) for the pound of higher grade methamphetamine.                                (Id. at 52-

        53).     Eventually       they agreed       that       Detective     Echevarria          would also

        purchase thirteen thousand dollars ($13 ,000.00) of the lower grade crystal

        methamphetamine.           (Id. at 53). They scheduled the exchange for August

        31, 2013, at around 5:00 p.m. at the McDonald's in Gilbertsville.                                  (Id. at

        54, 77).

                At approximately 2:50 p.m. on August 31, 2013, Corporal Pasquale

        Leporace     from    the    Berks        County       District    Attorney's      Office set           up

        surveillance on the 400 block of North 9th Street in Reading based on

        information the District Attorney's office had about this organization.                               (Id.

        at 59, 61). Corporal Leporace noticed two (2) individuals sitting inside of a

        parked Dodge Charger.             (Id. at 62).        To get a better view and a possible

        identification,     Corporal      Pasquale        drove     by the       parked          vehicle     and

        identified   co-defendant         Alder Hernandez-Solorio                ("Hernandez-Solorio").

        (Id. at 64). After Corporal Pasquale turned around and drove back, he saw

        the two men from the Charger speaking with the driver of the same black

        pickup truck that law enforcement                     had seen Appellant riding in as a

        passenger    to deliver the methamphetamine                      to Detective Echevarria               on

        August 12, 2013.      (Id. at 65).



                                                         10
                Detective     Echevarria      arrived at the McDonald's                 in Gilbertsville   at

         around 5:00 p.m. and let Montilla know that he had arrived.                             (Id. at 77).

         Montilla directed him to move across the street to Zerns Farmers Market.

1-'--    (Id. at 77-78).    Montilla informed Detective Echevarria that he would be in

         a blue Kia. (Id. at 78).

                Detective     Michael     Reynolds     of the Montgomery                  County     District

         Attorney's Office was working that day as a surveillance officer to assist in

         the investigation and help protect Detective Echevarria.                       (Id. at 67, 69).   As

         Detective Reynolds was entering the Zerns Farmers Market parking lot, he

         observed a Dodge Charger occupied by two (2) males, later identified                              as

         co-defendants     Hernandez-Solorio        and Eloy Solo_rio-Flores.              (Id. at 70, 89).

         Detective Reynolds confirmed with other law enforcement that this Dodge

        · Charger was the same vehicle observed earlier in the afternoon up on the

        400 block of North 9th Street in Reading.             (Id. at 71).        The Dodge Charger

        eventually    parked      in    front   of the     Kia   and     Detective            Echevarria's

        undercover vehicle.       (Id. at 72-73).

              After Detective Echevarria and supporting law enforcement                              officers

        had moved their vehicles to the Zerns' parking lot, Detective Echevarria

        approached the blue Kia Sorento SUV on foot. (Id. at 79).                         He noticed that

        someone other than Montilla was seated in the Kia and later identified the

        man as co-defendant        Hector Cucuas ("Cucuas").            (Id.).      After Cucuas told

        Detective    Echevarria        that   he was      a friend     of Montilla's,              Detective

        Echevarria    asked    to see the methamphetamine.                       (Id.     at 80).      Once



                                                     Il
          Detective Echevarria        confirmed that the box inside of a bag in the back

          seat of the Kia contained         narcotics, he gave a portion ($4,000.00)                 of the
   '"·
I.r~.;
m         agreed-upon        price to Cucuas and explained that he had to return to his
 ,.
"
          car to get the rest.        (Id. at 80, 83-84,         87).     Detective    Echevarria      then

          returned to his undercover           vehicle to provide some separation               for other

01        law enforcement        on the scene to make their arrests.                  (Id. at 88).     The

          officers arresting     Cucuas     recovered        a loaded Glock 9-millimeter          firearm

          and three (3) cell phones in addition                to just over one (1) pound (16.45

         ounces) of the higher grade methamphetamine                      and just over half a pound

         (8.12     ounces)    of the lesser     grade        methamphetamine,          along    with    the

         $4,000.00     in currency from inside of the Kia Sorenta.                  (Id. at 89-90,     121,

          123,   125, 130, 131-32; Trial Exhibits C-17,                 30, 38, 40-41).      The officers

         who arrested         Hernandez-Solorio         and     Solorio-Flores        from the       Dodge

         Charger recovered        three (3) cell phones          from the center compartment,

         dash slot and passenger          floor as well as a cell phone from the right front

         pants pocket of passenger           Hernandez-Solorio.             (Id. at 74, 93, 99; Trial

         Exhibits C-19,      20, 21 and 22).

                 After obtaining      search warrants          for the phone records,           Detective

         Echevarria matched up phone calls and text messages from the call detail

         records     provided by the cell phone providers.                   (Id. at 102).      Through

         Detective     Echevarria's     investigation,         law      enforcement       was   able     to

         determine who the phones belonged to and link up the text messages and

         phone calls concerning        the August 31,          2013      delivery   and bust.     (Id. at



                                                        12
         100-114;         Trial   Exhibit     C-27).      In that      regard,    the Commonwealth
1))
        ascertained that Appellant had used two (2) phones to communicate with

        other members of the organization as well as with Detective Echevarria.

        (Id. at 105, 112-14).         Of particular interest were calls and text messages              to

        and from Montilla to and from Appellant after their codefendants had not
1-··
Or      returned         from the drug deal on August 31 sr, the codefendants                     having

        been arrested unbeknownst to Montilla and Appellant at the time.                      (Id.).

                Appellant was arrested on or about October ·7, 2013.                     On December

        19, 2013, the Commonwealth filed a notice of joinder of cases providing

       Appellant notice that the Commonwealth intended to try Appellant's                           case

        together with co-defendants               Solaria-Flores,     Hernandez-Solorio,     Montilla,

       Morales-Soria          and Cucuas.        (Commonwealth's         Notice of Joinder of Cases

       Pursuant          to   Pennsylvania         Rule        of Criminal   Procedure     582,     filed

        12 / 19 / 13).     This court scheduled the matter for a jury trial to commence

       on September           15, 2014.       The five co-defendants         entered pleas of guilty

       before the commencement                of trial.

               On September          12, 2014, the Commonwealth              filed a motion in limine

       to admit other bad acts under Pa.R.E.                     404(b) seeking allowance to admit

       evidence     of Appellant's          three (3) narcotics sales to undercover          Trooper

       Geraldo      Martinez      at the garage in the city of Reading,              Berks County.

       Specifically,      the Commonwealth             requested    the court's permission    to elicit

       evidence     of the three (3) prior narcotics               transactions   to prove intent as

       well as a common scheme, plan and design and to negate the anticipated



                                                          13
            defense     that Appellant        was unaware       of his involvement             in a larger

            organization     or conspiracy and unaware that he was delivering a sample

            that would result in a larger transaction.                (Commonwealth's           Motion in

1--•        Limine to Admit Other Bad Acts under Pa.R.E. 404(b), filed 9 / 12/ 14; N.T.

            Trial9/15/14,       at 12-13).

                   After swearing        in the jury for the trial,           the court heard          oral

            argument       by Counsel        outside   the presence      of the jury, on Monday

            afternoon, September 15, 2013.             (N.T. Trial 9/15/13,       at 12-16).     Following

           argument and an opportunity              to review the law, the undersigned            granted

           the Commonwealth's           rnotion.?      The undersigned      also stated to Defense

        Counsel        that the court would not be opposed to giving a limited jury

        instruction        if Counsel    wanted to prepare and submit one for approval.

        (N.T. 9/ 15/ 14, at 40).

                  Prior     to the start of testimony,          Defense       Counsel      submitted     a

        proposed limited jury instruction to be read following the testimony of the

       undercover          State Trooper who had conducted              the controlled         buys from

       Appellant in Reading,            Berks County.t?       (N.T. Trial 9/16/14,         at 8-9, Trial


       9
            The court explained as follows:

                 It's being granted because it will afford the Commonwealth the opportunity
                 to show intent, common scheme, plan, and design. I think this case is made
                 stronger, frankly, by the fact that the Commonwealth charged under corrupt
                 organizations, because in the bill of information it referenced pattern, and
                 certainly that would go to the common scheme, plan, and design.

       (N.T. 9/15/14,     at 39-40).

       '0    The court also explained   to Counsel on the record the following:


                                                         14
              Exhibit D-1).               On September         16, 2014, the jury heard the testimony of

              Detective Echevarria, Trooper Martinez, two of the surveillance officers, an

              officer on the arrest team and Detective Michael Fedak.                          After Trooper
    ,·,
     ..:,
'             Martinez testified, the undersigned read the following limiting instruction:

                       Members of the jury, you have just heard the testimony of
                       Trooper Geraldo Martinez.  You heard testimony concerning
                       acts that were alleged to have occurred in Berks County,
                       Pennsylvania.

                       The defendant is not charged in this case with those alleged
                       deliveries, and they are not before you in this case to
                       determine guilt or innocence.      You are free, as with any
                       witness, to accept or reject, in whole or in part, the testimony
                       presented to you. The Commonwealth admitted this evidence
                       from which it asks you to draw an inference that the
                       defendant had knowledge his acts were part of a conspiracy
                       through a common scheme, plan, or design.          I instruct you
                       that if you accept this testimony, to only consider it for that
                       limited purpose.

             (N.T. Trial 9/ 16/ 14, at 157).

                       Detective          Fedak    testified    as an expert     in drug trafficking and

             distribution.         (Id. at 163).      Specifically,    Detective Fedak testified,   inter alia,

            about the significance of providing samples of narcotics before the actual

            exchange of money as it relates to Appellant's                    role in the organization,    the


                      I read over the jury instructions for corrupt organizations last evening. The
                     jury instruction references that the Commonwealth must prove that the
                     defendant committed two or more crimes that are called acts of
                     racketeering, and I confirmed with the Commonwealth in the presence of
                     defense counsel that those two crimes that the Commonwealth -- more
                     [than] that the Conunonwealth intends to prove complied with that
                     requirement under corrupt organizations.       Neither one of those or any of
                     those are the alleged offenses that I permitted to be referenced as part of the
                     404(b) prior bad acts.

            (N .T. 9/ 16/14,   at I 0).


                                                                  15
        structure     of the organization,         as well as the use of cell phones               as a

        necessity in this type of organization in order for the enterprise                     to be
t2i:
rn
<,      successful.     (Id. at 164-73).

              Although Appellant did not testify at trial, he denied any knowledge

        of a conspiracy or larger organization.                 His defense, for the most part,

in      consisted of the fact that he did not receive any money in exchange for the

        samples     of narcotics        he      provided   to    the   undercover      detective     in

       Montgomery County, that he was not present for the larger transaction on

       August 31,       2013,      and that any drugs he may have sold, he did so to

       support his own habit and not as part of a conspiracy.

             The jury returned its verdict of guilty on all counts on Wednesday,

       September 17, 2014.           The court deferred sentencing until such time as the

       Adult Probation          Department      could provide a PPI Evaluation          and a Pre-

       Sentence Investigation         Report.

             At sentencing on December               18, 2014, Appellant again denied any

       involvement      in a conspiracy           or an organization.          (N.T.    Sentencing

       12/18/14,      at 14-15).     As it pertained to Appellant's case in Berks County,

       the undersigned          explained    his reasoning        for imposing      a consecutive

       sentence as follows:

            Before imposing sentence, I have considered the presentence
            investigation report significantly as well as the PPI report. I
            was the trial judge in this case, and I've had the opportunity
            to review all the testimony as it was presented.       I've also
            certainly had the opportunity now to hear [Appellant} by way
            of a statement in allocution as well as the well-made
            arguments by counsel. So I will enter the following sentence:



                                                      16
                                    *        *           *        *
            Significantly -- and I do want to say significantly -- this
            sentence will not commence -- will run consecutive to the
            sentence that's imposed in Berks County. It's important that
            that be made part of the record. It furthers, in my judgment,
            the need to differentiate the crimes committed in Berks
            County from Montgomery County. It also demonstrates the
            nature of this organization being a multi-county organization.

m    (Id. at 15-1 7).

            Counsel     for Appellant     and         Appellant       both   filed     post-sentence

     motions.     (Defendant's   Counsel's Post-Sentence                Motion,      filed 12/ 19 / 14;

     Defendant's pro se      Motion for Post-Sentence                 Relief, filed 1/23/ 15).       At

    argument on Friday, March 20, 2015, Counsel argued both motions.                              (N.T.

    Hearing on Defendant's       Petition for Post-Sentence               Relief 3/20/ 15).        The

    court denied Appellant's motions by order dated April 3, 2015.                           On April

    17, 2015,    Appellant filed a notice of appeal to the Superior Court.                         The

    undersigned     directed Appellant to file a concise statement                      of the errors

    complained     of on appeal ("Statement")                by order    dated April 20, 2015.

    Appellant filed his Statement       on May 7, 2015.


    III.   ISSUES

           Appellant now raises the following issues on appeal:

            1.     [A-3) The Honorable Court committed an error of law
           and/or abuse of discretion when it [sic) [Appellant's] motion at
           trial and in Post Sentence Motions for a new trial where the
           Commonwealth failed to present sufficient evidence for the
           trier of fact to find [Appellant] guilty of the crimes charged.

           2.    [A-2] The Honorable Court committed an error of law
           and/ or abuse of discretion when it denied [Appellant's] motion



                                                 17
fl);




::1
                at trial and in Post Sentence Motions for a new trial where the
OJ              verdict was against the weight and sufficiency of evidence.

                3.     (A-4] The Honorable Court committed an error of law
                and/ or abuse of discretion when it allowed evidence of prior
                bad acts committed in Berks County and subject to an open
                case alleging evidence of sales of narcotics, common phone
                numbers and other evidence that had not been adjudicated on
                at the time of trial via the testimony of Trooper Martinez.

                4.     (A-5] The Honorable Court committed an error of law
                and/ or abuse of discretion when it denied post-trial motions
                for a new trial based on the evidence allowed under 404[bJ
                introduced by Trooper Martinez.

               5.    (A-6] The Honorable Court committed an error of law
               and/ or abuse of discretion        when    it allowed     prior
               unadjudicated acts, via testimony of Trooper Martinez, alleged
               to have occurred in Berks County where [Appellant] would
               have had to waive his 5th Amendment rights and in violation
               of Due Process to defend himself in the Montgomery County
               case with the case being open in Berks County,

               6.    [A-1] The Honorable Court committed an error of law
               and/ or abuse of discretion when it denied [Appellant's] Post
               Sentence Motion for a new Sentence because the sentence
               was unduly harsh and excessive.

         (Statement, filed May 7, 2015).      11




        IV.    DISCUSSION

               In his first two issues on appeal, Appellant seeks either a judgment

       of acquittal or a new trial, contending            that the Commonwealth failed to

       present sufficient evidence and that the verdict was against the weight of

       the evidence.     Appellant is mistaken.

              The appellate scope and standard of review are long settled:


       11
          The court has reordered Appellant's issues for ease of disposition.   Appellant's original
       order of issues presented in his Statement is noted with an [A-*.].


                                                    18
.;
I···•
              As a general matter, [appellate] review of sufficiency claims
              requires that we evaluate the record "in the light most
              favorable to the verdict winner giving the prosecution the
              benefit of all reasonable inferences to be drawn from the
              evidence." Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d
              745, 751 (2000). "Evidence will be deemed sufficient to
              support the verdict when it establishes each material element
              of the crime charged and the commission thereof by the
              accused, beyond a reasonable doubt."          Commonuseolth. v.
              Brewer, 876 A.2d 1029, 1032 (Pa.Super.2005). Nevertheless,
              "the Commonwealth          need not establish      guilt to a
              mathematical certainty." Id.; see also [ Aguado, 760 A.2d at
              1185] ("[TJhe facts and circumstances established by the
              Commonwealth need not be absolutely incompatible with the
              defendant's innocence."). "[W)here no single bit of evidence
              will by itself conclusively establish guilt, the verdict will be
              sustained where the totality of the evidence supports the
              finding of guilt." Commonwealth v. Thomas, 522 Pa. 256, 561
              A.2d 699, 704 (1989).

              Thus, our Courts have recognized that proof of guilt may be
              inferred entirely from evidence of circumstances that attended
              the commission of the crime. See Breuier, 876 A.2d at 1032.
              "The fact that the evidence establishing         a defendant's
              participation in a crime is circumstantial does not preclude a
              conviction where the evidence coupled with the reasonable
              inferences drawn therefrom overcomes the presumption of
              innocence." Id. (quoting Commonwealth v. Murphu, 795 A.2d
              1025, 1038-39        (Pa.Super.2002)).     Nevertheless,  "[t]he
              requirement of the law [remains} that in order to warrant a
              conviction[,] the facts and circumstances proved must be of
              such character as to produce a moral certainty of the guilt of
              the accused beyond any reasonable doubt." Commonwealth v.
              Bybel, 531 Pa. 68, 611 A.2d 188, 189 ( 1992) (quoting
              Commonwealth v. New, 354 Pa. 188, 47 A.2d 450, 455
              (1946)).

        Commonwealth v. Kinard, 95 A.3d 279, 291-92 (Pa.Super. 2014) (en bane)

        (quoting Commonwealth      v. Barker, 70 A.3d 849, 854 (Pa.Super. 2013) (en

        bane)).      Accord Commonwealth     v. l\llcCurdy, 943 A.2d 299, 301-03

        (Pa.Super.    2008) (finding evidence sufficient   to support   conviction for




                                              19
 corrupt     organizations       under     18 Pa.C.S.A. § 91 l(b)(3)).           Finally, an

 appellate court will review the entire trial record, even evidence which is

 impermissibly            introduced,    when        evaluating     a   sufficiency    claim.

 Commonwealth v. Sanders, 42 A.3d 325, 329 n.1 (Pa.Super. 2012 (citing

 Commonwealth v. Reed, 605 Pa. 431, 436, 990 A.2d 1158, 1161 (2010));

 accord Commonwealth v. Tejada, 107 A.3d 788, 793 (Pa.Super. 2015)

 (citation omitted).

          Herein,        the   Commonwealth          charged      Appellant    with   corrupt

organizations,      12    possession     of a controlled       substance      with intent   to

deliver, 13 criminal conspiracy to commit possession with intent to deliver a

controlled substance.!"          dealing in unlawful proceeds+" and criminal use of


12  Pursuant to 18 Pa.C.S.A. § 91 l(b)(l), the Commonwealth had to prove beyond a
reasonable doubt that Appellant, having received income derived, directly or indirectly,
from a pattern of racketeering activity in which he participated as a principal, did
unlawfully use or invest, directly or indirectly, any part ·of such income, or the proceeds of
such income, in the acquisition of any interest in, or the establishment or operation of any
enterprise.

13
    Pursuant to 35 P.S. § 780-113(a)(30), the Commonwealth had to prove beyond a
reasonable doubt that Appellant did deliver or possess with intent to deliver a controlled
substance classified in Schedule I, II, III or IV to wit: Methamphetamine.

14
    Pursuant to 18 Pa.C.S.A. § 903(a) and 35 P.S. § 780-l 13(a)(30), the Commonwealth
had to prove beyond a reasonable doubt that Appellant had the intent of promoting or
facilitating the crime of possession with the intent to deliver a controlled substance with
another and agreed- that they or one or more of them would engage in conduct which
constitutes such crime or attempt or solicitation to commit such crime; or agreed to aid
such other person or persons in the planning or commission of such crime or of an attempt
or solicitation to commit such crime. See Commonwealth v. Kinard, 95 A.3d 279, 293
(Pa.Super. 2014) (en bane) (citation omitted); Commonwealth v. Watley, 81 A.3d l08,
115-16 (Pa.Super. 2013) (en bane) (quoting Commonwealth v. Feliciano, 67 A.3d 19, 25-
26) (en bane)).
15
     Pursuant to 18 Pa.C.S.A. § 511 I (a)(l ), the Commonwealth had to prove beyond a


                                                20
             communication     Iacility.w   Regarding the charge of criminal conspiracy in

             particular,   the Superior Court in Kinard, supra reiterated the following

             precepts:

1.,;.               "An explicit or formal agreement to commit crimes can
                    seldom, if ever, be proved and it need not be, for proof of a
l'<J;
                    criminal partnership is almost invariably extracted from the
I·''·               circumstances that attend its activities." Commonwealth v.
(Jli                Johnson, 719 A.2d 778, 785 (Pa.Super.1998) (en bane), appeal
                    denied, 559 Pa. 689, 739 A.2d 1056 (1999) (citations omitted).
                   Therefore, where the conduct of the parties indicates that they
                   were acting in concert with a corrupt purpose in view, the
                   existence of a criminal conspiracy may properly be inferred.
                    Common.wealth v. Snyder, 335 Pa.Super. 19, 483 A.2d 933,
                   942 (Pa.Super.1984). This court has held that the presence of
                   the following non-exclusive list of circumstances when
                   considered together and in the con text of the crime may
                   establish proof of a conspiracy: ( 1) an association between
                   alleged conspirators, (2) knowledge of the commission of the
                   crime, (3) presence at the scene of the crime, and (4}
                   participation in the object of the conspiracy. Commonwealth
                   v. Swerdlow, 431 Pa.Super. 453, 636 A.2d 1173, 1177
                   (Pa.Super.1994).

        95 A.3d at 293.

                   Instantly, viewing the entire record in the light most favorable to the

        Commonwealth,          giving the prosecution        the benefit of all reasonable

        inferences to be drawn from the evidence,              the evidence adduced at trial

        established the material elements of each crime charged.                Specifically, the



        reasonable doubt that Appellant conducted a financial transaction with knowledge that the
        property involved represented the proceeds of unlawful activity, he acted with the intent to
        promote the carrying on of the unlawful activity.
        16
             Pursuant to 18 Pa.C.S.A. § 75 I 2(a), the Commonwealth had to prove beyond a
        reasonable doubt that Appellant did unlawfully use a communication facility to commit,
        cause or facilitate the commission or the attempt thereof of any crime, to wit: possession
        with intent to deliver a controlled substance.


                                                    21
 . . . -•
 ,-1
             evidence demonstrated          that Appellant was involved             in a conspiracy with

             Cucuas, Hernandez-Solorio,           Montilla, Morales-Soria           and Solorio-Flores      to

             engage in the business of selling illegal narcotics.               Contrary to Appellant's

             assertion otherwise,        the fact that Appellant did not personally receive cash

             in exchange for the samples at the time he delivered                       them to Detective

t:n          Echevarria     is of no momeht.          Further,    the jury found the assertion            that

             Appellant     had no "knowledge           of the greater       amount"       of narcotics     for

             possible delivery at a later time incredible under the circumstances.

                   It is noteworthy that Appellant did not specify how the evidence was

            insufficient or specifically which of the convictions               were unsupported with

            sufficient     evidence.       However,     having      listened    to each       witness     and

            observed all of the evidence during the entire trial, this court concludes

            that the evidence was sufficient to support each of Appellant's convictions

            as found      by the jury.        During this three-day            trial,   the jurors      heard

            Montgomery          County    Detective     Echevarria        testify   about     his    specific

            dealings with co-defendants           Montilla and Morales-Soria            and Appellant      by

            cell phone      as well as in person.              Montilla   gave Detective Echevarria

            Appellant's     cell phone      number      on August         12, 2013,       as the contact

            number        for    the     person     who        would      deliver       the   sample       of

            methamphetamine.           Detective Echevarria spoke with Appellant on the c.ell

            phone number that co-defendant             Montilla had provided.           Appellant    arrived

            to deliver the sample in the same black pickup truck on August 12, 2013,

            that Corporal Leporace saw in Reading earlier in the day on August 31,



                                                          22
 2013,      the day of the final large          delivery.   Appellant   told Detective

 Echevarria      to place future orders through Montilla and Appellant would

 deliver those orders.     Co-defendants        Hernandez-Solorio   and Solorio-Flores

 arrived at Zerns for the large quantity              of methamphetamine      deal on

 August 31, 2013, in the same Dodge Charger that Corporal Lepo race sa ,v

 in Reading earlier that day talking to people in the same black pickup

 truck used by members of this organization.

         The jury also heard the testimony of State Trooper Martinez who

 described in detail the three (3) controlled buys of methamphetamine               on

June 10, July 10 and July 31, 2013, for cash from Appellant in Reading

after Appellant       first provided    a sample       and used the same type of

containers      with a secret compartment         to hide the sample that he used

when he brought the two samples to Detective Echevarria in Gilbertsville

.on August 12, 2013.       In addition, the jury heard the testimony by officers

of the arrests of Appellant's co-defendants           leading to the discovery of cell

phones used by the participants         in this conspiracy.     Detective Echevarria

explained      to the jury how he obtained the phone records for these cell

phones      and matched     up phone calls and text meseages             amongst the .

participants     including Appellant.    Finally, the jury heard the testimony of

Detective      Fedak, who explained      the significance      of providing   samples

before the actual exchange of money and delivery of the larger quantity of

illegal narcotics.




                                           23
                In the instant    case, there was ample evidence in the record from

      which a reasonable jury could conclude that Appellant was one of the men

      involved in a conspiracy to possess illegal narcotics              with the intent to

      distribute      as well as a participant         in a corrupt    organization.        The

      Commonwealth          met its burden of proof for each and every element of the

rn    crimes charged.

                Additionally,   the well-established   standard of review on a claim that

      a verdict is against the weight of the evidence is as follows:

                The weight of the evidence is exclusively for the finder of fact
                who is free to believe all, part, or none of the evidence and to
                determine the credibility of the witnesses. An appellate court
                cannot substitute its judgment for that of the finder of fact.
                Thus, we may only reverse the [trial} court's verdict if it is so
                contrary to the evidence as to shock one's sense of justice.

            Moreover, where the trial court has ruled on the weight claim
            below, an appellate court's role is not to consider the
            underlying question of whether the verdict is against the
            weight of the evidence.   Rather, appellate review is limited to
            whether the trial court palpably abused its discretion in ruling
            on the weight claim.

     Commonwealth v. Serrano, 61 A.3d 279, 289 (Pa.Super.                   2013)     (quoting

     Commonwealth v. Champney, 574 Pa. 435, 444,                      832 A.2d      403, 408

     (2003));     accord Commonwealth v. Hankerson, _             A.3d    _,_       (2015   WL

     3549969 (Pa.Super.         2015) (citations omitted).

            The undersigned         had the opportunity      to listen to the testimony

     described above, observe the witnesses' demeanor            and the demonstrative

     evidence      as well as observe       the jury throughout       this trial.      It was

     exclusively within the jury's province to weigh the Commonwealth's                 direct



                                                 24
     and circumstantial        evidence.    Appellant's convictions are not so contrary

     to the evidence as to shock one's sense of justice. Accordingly, Appellant's

     sufficiency and weight claims merit no relief.

           In his third, fourth and fifth issues on appeal, Appellant asserts that

     the court erred or abused its discretion in allowing evidence in this trial of

 Appellant's         narcotics     transactions        with       an undercover        officer     which

 occurred       in     Berks      County    and        for    which    charges        were       awaiting

 adjudication        in Berks County.         Appellant           argues that the evidence was

 more prejudicial         than probative and that the court erred in allowing this

 evidence because to defend against it would have required Appellant to

 waive his Fifth Amendment rights in this case to defend against the Berks

 County allegations.           Appellant asserts that his testimony in this case then

would have been used against him in the Berks County case.                                          (Post

Sentence Motion Brief, filed 1/ 12/15,                 at 8).11

          The    Commonwealth              proffered         Trooper        Martinez's       testimony

concerning       three      (3)   prior    narcotics         transactions      with      Appellant     to

demonstrate          intent as well as a common scheme, plan or design and to

dispel Appellant's         defense that he was unaware of his involvement                            in a

conspiracy      or a larger corrupt organization                   in the Montgomery             County

case (in other words, a lack of knowledge).                    In support, the Commonwealth

cited Commoniuealth. v. Pattalcos, 754 A.2d 679 (Pa.Super. 2000) (evidence
17
   Counsel candidly admitted that he had not been able to find any case law on point to
submit to the court specifically on open cases in different jurisdictions. (N.T. Hearing on
Defendant's Petition for Post-Sentence Motion and Relief, filed 3/20/ 15, at 8).



                                                  25
      of prior uncharged drug transactions            properly admitted     to establish

      relationship     between parties) and Commonwealth v. Echevarria, 575 A.2d

      620 (Pa.Super.       1990) (evidence   of prior uncharged       drug transactions

1·'   properly admitted       to prove intent).     According   to Appellant,   however,

      "knowledge of the greater amount ...         has always been the sticking point".

m     (N.T. Trial 9/ 15/ 14, at 15).   Appellant proffers that he is entitled to a new

      trial as a result of this court's error. The court disagrees.

            Writing for the majority on the en bane panel in Kinard, supra, the

      Honorable      Kate Ford Elliott explained    Pennsylvania   law on this issue in

      pertinent part as follows:

             Admission of evidence rests within the discretion of the trial
            court, and we will not reverse absent an abuse of discretion.
             Commonwealth      u.     Washington, 63 A.3d 797,          805
             (Pa.Super.2013).     "Discretion    is abused when the course
            pursued represents      not merely an error of judgment, but
            where the judgment is manifestly unreasonable or where the
            law is not applied or where the record shows that the action is
            a result of partiality,          prejudice,   bias  or ill will."
            Commonwealth       v.     Martinez,      917   A.2d   856,  859
            (Pa.Super.2007).

            Generally speaking, evidence is admissible if it is relevant,
            that is, "if ft logically tends to establish a material fact in the
            case, tends to make a fact at issue more or less probable or
            supports a reasonable inference or presumption regarding a
            material fact." Commonwealth v. Williams, 586 Pa. 553, 581,
           896 A.2d 523, 539 (2006) (citation omitted); Pa.R.E. 402. It is
           settled law in this Commonwealth that other bad acts
           evidence is inadmissible to prove a defendant's propensity to
           commit crime.         Commonwealth v. Brookins, 10 A.3d 1251,
            1256 (Pa.Super.2010),       appeal denied, 610 Pa. 625, 22 A.3d
            1033 (2011).         Nonetheless,   bad acts evidence may be
           introduced for other limited purposes, including, but not
           limited     to,    establishing    motive,    opportunity,   intent,
           preparation, plan, knowledge, identity or absence of mistake



                                             26
                  or accident, common scheme or design, modus operandi, and
                  the natural history of the case. Id.; Pa.RE. 404(b)(2). This
                  evidence is admissible only if the probative value of the
                  evidence outweighs its potential for unfair prejudice.
'      .
    '"                 It has been succinctly stated that (t)he purpose of this
                       rule is to prevent the conviction of an accused for one
                       crime by the use of evidence that he has committed other
                       unrelated crimes, and to preclude the inference that
,.,.                   because he has committed other crimes he was more
ITT                    likely to commit that crime for which he is being tried.
                      The presumed effect of such evidence is to predispose the
                       minds of the jurors to believe the accused guilty, and
                      thus effectually to strip him of the presumption of
                      innocence.

                  Commonwealth u. Spruill, 480 Pa. 601, 604-605, 391          A.2d
                  1048, 1049 (1978).

           Kinard, supra at 284. Intent, for example, is a mental state which "can be

           inferred   from conduct."     Cotrunonioealtli   v.   Ross, 57 A.3d 85,   101

           (Pa.Super. 2012) (en bane) (citation omitted).

                 The Pennsylvania Rules of Evidence specifically provide as follows:

                 (b) Crimes, Wrongs or Other Acts.

                 (1) Prohibited Uses. Evidence of a crime, wrong, or other act is
                 not admissible to prove a person's character in order to show
                 that on a particular occasion the person acted in accordance
                 with the character.

                 (2) Permitted   Uses. This evidence     may be admissible for
                 another purpose, such as proving motive, opportunity, intent,
                 preparation, plan, knowledge, identity, absence of mistake, or
                 lack of accident.      In a criminal case this evidence is
                 admissible   only if the probative value of the evidence
                 outweighs its potential for unfair prejudice.

           Pa.R.E. 404(b).




                                                27
               Once the court concludes that the evidence is admissible for one or

     more of the limited purposes,            it must then conduct a balancing inquiry to

     determine whether           the evidence's probative value outweighs                    its potential

     for unfair prejudice.          Commonwealth          v. Hairston,        624 Pa. 143,         84 A.3d

     657, 665, 667 (2014) (citation omitted).                 Evidence of other crimes will not

m    be prohibited          merely because it is harmful to the defense.                      Id. at 666

     (citing Commonwealth           v. Dillon, 592 Pa. 351, 925 A.2d                131      141    (2007)).

     Rather, "'unfair prejudice' means a tendency to suggest decision                                 on an

     improper basis or to divert             the jury's attention             away from its duty of

    weighing the evidence impartially."                  Hairston, supra (citing            Pa.R.E.     403

    cmt.).

             Finally,       Pennsylvania     appellate       courts    have also reiterated              the

    presumption         that     a jury     will    follow    the     trial    court's      instructions.

    Commonwealth v. Hoover,_                Pa._,     107 A.3d 723, 731-32               (2014)    (citation

    omitted);     Commonwealth v. Travers, 564 Pa. 362, 366, 768 A.2d 845, 847

    (2001)     (citations    omitted).     In both Kinard, supra and Echevarria, supra,

    the respective      trial court gave a cautionary instruction                  to the jury which

    outlined the purposes for which the prior bad act evidence at issue could

    be considered.           In both cases, the Superior Court determined                          that the

    limiting     instruction     regarding     the purpose for which                 the jury         could

    consider     the evidence either cured or minimized                  any possible         prejudicial

    effect of the evidence at issue.          Kinard, supra at 287; Echevarria,                    supra at

    623. Accord Hairston) supra at 160, 84 A.3d at 666-67 (discussing cases).



                                                    28
            The Commonwealth               sought    to introduce evidence        of Appellant's

     prior alleged crimes in Berks County to demonstrate the intent element of

     the conspiracy to commit possession with intent to deliver charge as well

     as the absence          of mistake      and a common scheme,            plan,    or design.

     (Commonwealth's           Motion in Limine to Admit Other               Bad Acts      Under

     Pa. R.E. 404[b], filed 9 / 12/ 14).         The proffered evidence included three (3)

     deliveries by Appellant to an undercover state trooper with similarities                  to

     the instant crimes as follows:           1) the first delivery included a sample of a

     high grade methamphetamine              before the purchase and delivery of a larger

     quantity,        2) the Reading, Berks County sales were approximately one ( 1)

     month earlier of the delivery          of the sample in Gilbertsville,          Montgomery

 County,         I8   3) Reading and Gilbertsville        are relatively close geographically

 with Reading located in eastern Berks County and Gilbertsville in western

 Montgomery               County,     4)   the      use   of    containers   with      concealed

 compartments             used to hide the illegal narcotics samples in both counties

and 5) Appellant used the same phone number to conduct business                                in

both counties.

           This testimony           was directly     relevant    to the charges of criminal

conspiracy             to commit     possession      with intent     to deliver     a controlled

substance (methamphetamine).                     The evidence was probative of Appellant's

knowledge that he was part of a group of men engaged in the business of


18
    Appellant's sales to Trooper Martinez occurred on June 10, 2013; July 10, 2013, and
July 31, 2013. Appellant's delivery of the sample to Detective Echevarria occurred on
August 12, 2013.


                                                    29
           selling illegal narcotics. Trooper Martinez's testimony was also relevant to
 m
 ... ·i
           establish     the chain of events and Appellant's     course of criminal conduct.

           Defendant's      claim that he was not part of a conspiracy                     or a larger

1·'··      organization is buttressed by evidence which includes the fact that he had

           to call his "boss" in order to negotiate the price of the methamphetamine.

           Further,    Trooper     Martinez's   testimony   provided        context    for why law

           enforcement was in Reading performing surveillance when they observed

          the occupants of the Dodge Charger speaking with occupants of the black

          pickup truck. As a result, the jury could infer a conspiratorial                  agreement

          to engage in the sale of methamphetamine                   based on the direct and

          circumstantial evidence presented by the Commonwealth.

                 Although this prior bad acts evidence may have been prejudicial, it

          was not unduly so. Moreover, any prejudicial effect of Trooper Martinez's

          testimony was cured by this court's limiting instructions to the jury.                     As

          the trial courts did in Kinard, supra and Echevarria, supra, this court

          provided     the jury with an instruction drafted by Counsel regarding the

          limited purpose for which they could consider the evidence.                      Also, as in

          those cases, the jury was then free to accept or reject the evidence and to

          give it whatever weight they felt it deserved.

                The court        notes that Appellant     also based his objection                to the

          introduction     of Trooper     Martinez's     testimony     in    part     on    his    Fifth




                                                    30
            Amendment      privilege against self-incrimination.t?          While the argument

            appears to have some merit on its face, after a review of the relevant law,

            this court concluded any reliance on that argument was misplaced.

                  "The Fifth Amendment provides 'no person ... shall be compelled in
-,,.

            any criminal case to be a witness against hirnself].]".           Commonwealth v.

rn          Cooley, _    Pa. _, _, 118 A.3d 370, 375 (2015)             (quoting U.S. Const.

        amend. V); Commonwealth v. Knoble, 615 Pa. 285, 290, 42 A.3d 976, 979

        (2012).     "The Fifth Amendment privilege is not self-executing, and answers

        are generally not considered           compelled 'within the meaning of the Fifth

        Amendment         unless the witness is required to answer over his valid claim

        of the privilege."        Velori.c v. Doe,_    A.3d _,_(Pa.Super.       2015) (2015 WL

        5316868         at *5) (quoting      Knoble, supra).       "[T)he    Fifth   Amendment

       proscribes only self-incrimination             obtained by a genuine compulsion          of

       testimony."        Commonwealth v. Brown, 26 A.3d 485, 497 (Pa.Super. 2011)

       (emphasis added) (citing Commonwealth v. Padillas, 997 A.2d 356, 362

       (Pa.Super.       2010)).      Compulsion       exists for Fifth Amendment         purposes

       when some factor denies an individual "the 'free choice to admit, to deny,

       or to refuse        to answer."'        Brown, supra (citation         omitted)   (holding

       requirement        that minor must admit guilt to demonstrate             amenability to

       rehabilitation      in juvenile system during decertification          hearings violated


       19
           Counsel argued as follows: "it deprives my client of his Fifth Amendment rights
       because he's got an open county [sic] in Berks County, Pennsylvania, and he would have
       to waive his Fifth Amendment rights to give his version, potentially, as a defense in this
       matter." (N.T. Trial 9/ 15/14, at 15) ( emphasis added).



                                                       31
            minor's Fifth Amendment privilege). «Absent some officially coerced self-

            accusation, the Fifth Amendment privilege is not violated by even the most

            damning      admissions."        Padillas,     supra     (quoting    United   States   v.
    ,<
I   -~.1



            Washington, 431 U.S. 181, 187, 97 S.Ct. 1814, 1818-19, 52 L.Ed.2d 238,

            244, 245 (1977)). "[A]n attempt to invoke the Fifth Amendment privilege is

tn          specific to the testimony being compelled."            Veloric, supra.

                   Instantly, this court opines that the possibility that Appellant would

           have had to waive his Fifth Amendment rights to give his version of the

           events in Berks County as a defense in this matter does not constitute                   a

           genuine compulsion of testimony as defined by the case law to invoke the

           privilege. There had been no genuine compulsion at the time of trial and

           Appellant offered no specific argument as to how he would not be able to

           invoke the privilege and refuse to answer                 questions   about the Berks

           County charges if he decided to take the stand in his defense and had the

           Commonwealth posed any questions about his prior bad acts.                     Appellant

           was not on trial for the three offenses charged in Berks County, which the

           court made clear to the jury.          As stated above, the court admitted the

           evidence for a very limited purpose.          The requested relief is not due.20

                  In Appellant's final issue on appeal, he claims that the court erred

           or abused its discretion in denying his post-sentence             motion to modify his

           sentence.    Specifically Appellant complains that his sentence of four (4) to

           20
               Moreover, from a practical standpoint, Appellant subsequently pled guilty to the Berks
           County charges. If the requested remedy, a new trial, were to be granted, those offenses
           are now convictions and the issue would be moot.



                                                      32
          eight     (8)   years,   although       clearly   within    the     guidelines,   imposed
 !;,•.
 \_!._l
          consecutive to the Berks County case wherein Judge Lieberman sentenced

-,
     -,
          him to fifteen ( 15) months to ten ( 10) years, is unduly harsh and excessive

          because evidence of the Berks County buys was the "determining                     factor"

          in the Montgomery        County convictions.       (Appellant's Post Sentence Motion
,.,.,,.
IJi:      Brief,    filed 1/ 12/ 15,   at 2-3).      Appellant     suggests     that he has been

          sentenced twice for the same offenses.                 Appellant    is mistaken   and his

          claim lacks merit.

                   The Superior     Court reviews       a claim involving        the discretionary

          aspects of sentencing utilizing the following principles:

                     Sentencing is a matter vested in the sound discretion of
                     the sentencing judge, and a sentence will not be
                     disturbed    on appeal absent a man ifest abuse of
                     discretion. In this context, an abuse of discretion is not
                     shown merely by an error in judgment. Rather, the
                     appellant must establish, by reference to the record, that
                     the sentencing court ignored or misapplied the law,
                     exercised its judgment for reasons of partiality, prejudice,
                     bias or ill will, or arrived. at a manifestly unreasonable
                     decision.

                     Commonwealth        v.   Shugars,
                                                     895 A.2d     1270,      1275
                    (Pa.Super. 2006). In reviewing a sentence on appeal, the
                    appellate court shall vacate the sentence and remand the
                    case to the sentencing court with instructions if it. finds:

                    ( 1) the sentencing court purported to sentence within the
                    sentencing     guidelines  but applied     the guidelines
                    erroneously;

                    (2) the sentencing court sentenced within the sentencing
                    guidelines but the case involves circumstances where the
                    application    of the guidelines      would   be clearly
                    unreasonable; or
                   (3) the sentencing court sentenced          outside the
())                sentencing guidelines and the sentence is unreasonable.

                   In all other cases [,) the appellate court shall affirm the
                   sentence imposed by the sentencing court.

                   42 Pa.C.S.A.   § 9781.

                 Commonwealth v. Lewis, 45 A.3d 405, 411 (Pa.Super.        2012).
                 In addition, our Supreme Court has noted that:

                   "the guidelines have no binding effect, create no
                   presumption in sentencing, and do not predominate over
                   other sentencing factors-they  are advisory guideposts
                   that are valuable, may provide an essential starting
                   point, and that must be respected and considered; they
                   recommend, however, rather than require a particular
                   sentence."

      Commonwealth v. Glass, SO A.3d 720, 727-28 (Pa.Super. 2012) (quoting

      Commonwealth v. Perry, [612 Pa. 557, 571,J          32 A.3d 232, 240 (2011)).

      The Peny Court further explained         the sentencing     court's discretion   as

      follows:

            An abuse of discretion may not be found merely because an
            appellate court might have reached a different conclusion. Id.
            Indeed, as we explained in [Commonwealth v.J Walls, [592 Pa.
            557, 926 A.2d 957 (2007),] there are significant policy reasons
            underpinning this deferential standard of review:

                  The rationale behind such broad discretion and the
                  concomitantly deferential standard of appellate review is
                  that the sentencing court is "in the best position to
                  determine the proper penalty for a particular offense
                  based    upon    an    evaluation  of the      individual
                  circumstances before it." Simply stated, the sentencing
                  court sentences flesh-and-blood defendants and the
                  nuances of sentencing decisions are difficult to gauge
                  from the cold transcript used upon appellate review.
                  Moreover, the sentencing court enjoys an institutional
                  advantage to appellate review, bringing to its decisions
                  an expertise, experience, and judgment that should not



                                              34
                   be lightly    disturbed. Even with the advent of sentencing
                   guidelines,     the power of sentencing is a function to be
                   performed      by the sentencing court. Thus, rather than
                   cabin the     exercise of a sentencing court's discretion, the
                   guidelines     merely inform the sentencing decision.

               Id. at 565,        926 A.2d        at 961-62          (citations     and      footnote
               omitted).
j\11

~·
        Petru, supra at 565, 32 A.3d at 236-37.

               The sentencing          court's decision            must be accorded great weight

        because it was in the best position to measure "the defendant's character,

        defiance or indifference, and the overall effect and nature of the crime."

        Commonwealth v. Marts,· 889 A.2d 608,                       613 (Pa.Super.         2005) (citation

       omitted).       In addition,       "the trial court           is permitted      to consider      the

       seriousness of the offense and its impact on the community."                           Id. at 615.

               There is no requirement         under the current Sentencing                   Code that a

       sentencing court's imposition of sentence "must be the minimum possible

       confinement".          Walls,      supra     at      571,     926    A.2d      at     965;    accord

       Commonwealth v. lvloury, 992 A.2d 162, 171 (Pa.Super.                        2010).     Indeed, the

       Superior      Court   will also reverse           a sentence         that    is too lenient          as

       unreasonable.         See Commonwealth               v. Daniel, 30 A.3d            494 (Pa.Super.

       2011)   (concluding sentencing             court's     failure to take into account              the

       extremely serious         nature    and circumstances               of the offenses          and the

       defendant's    failure to accept responsibility in fashioning a sentence that

       was a downward            departure     from the            guidelines      was irrational       and

       unsound).




                                                      35
                It is also long settled that Pennsylvania                sentencing courts         have

        discretion    pursuant      to 42        Pa.C.S.A.     § 9721     to impose       sentences

        consecutively or concurrently to others being imposed at the same time or

,,,.    to sentences already imposed.            Commonwealth v. Caldwell, 117 A.3d 763,

        769 (Pa. Super. 2015) (en bane) (citing Commonwealth v. Mastromarino, 2

m       A.3d 581, 587 (Pa.Super.           2010)); Commoruuealiti v. Treadway, 104 A.3d

        597,   599    (Pa.Super.     2014)    (citation      omitted);   Mouri],    supra (citation

        omitted).    Moreover, "the imposition of consecutive rather than concurrent

        sentences    will present a substantial           question in only 'the most extreme

       circumstances,     such as where the aggregate sentence is unduly harsh,

       considering     the nature of the crimes and the length of imprisonment."

       Caldwell,      supra    (citation      omitted);       accord     Mouru,      supra    (citing

       Commoruuealth: v. Pass, 914 A.2d 442, 446-47 (Pa.Super. 2006)).

               In Pass, supra, the appellant              therein   argued that it was unduly

       harsh    and excessive       to run an aggregate             sentence       consecutively     to

       another unrelated       sentence imposed earlier when "the same act used to

       find him in violation of his probation and parole in [the current] four cases

       was the same act used to find him in violation of [the previous] sentence."

       The Superior Court panel concluded that the appellant                       failed to raise a

       substantial question.       Id. at 446.

               In the case sub judice, Appellant presents a similar argument.                 First,

       Appellant concedes,      as he must, that the sentence imposed is well within

       the sentencing     guidelines.        On the two (2) convictions                for criminal



                                                     36
            conspiracy to commit possession         with intent to deliver, the undersigned

            imposed a sentence of three (3) to six (6) years each, to run concurrent

            with one another, and a consecutive term of ten (10) years' probation.v'                 In

            addition, the court sentenced Appellant to a consecutive term of one (1) to

            two (2) years' in prison and a five (5) year period             of probation on the
I""·
m           conviction for dealing in unlawful proceeds.         Appellant received concurrent

            terms for the remaining convictions except for the determination                 of guilty

            without further penalty on the conviction            for possession     with intent to

            deliver and the conviction for criminal         use of a communication            facility.

            His exposure was far greater.

                  Appellant      complains,    however,      that     imposing    this      aggregate

        sentence of four (4) to eight (8) years consecutive to his sentence imposed

        by Judge Lieberman           for the offenses he committed         and pled guilty to in

        Berks County was unduly harsh and excessive.                      Specifically, Appellant

        asserts that the testimony            of Trooper    Martinez      concerning     the Berks

       County        narcotics     sales   constituted     the      determining    factor     in   the

       Montgomery County jury's convictions.               Appellant is mistaken.

                 As discussed       infra, Appellant      was not charged         with the Berks

       County drug deliveries in this case.              Rather, the charges he faced were,

       inter alia, criminal conspiracy to commit possession with intent to deliver

       21
           Count 6 and Count 7 for criminal conspiracy as an ungraded felony carried an offense
       gravity score of 11. With Appellant's prior record score of 0, the standard range of the
       sentencing guidelines is thirty-six (36) to fifty-four (54) months.          (Pennsylvania
       Commission on Sentencing, §303.16 Basic Sentencing Matrix i11 Edition, 12/28/12).
       Accordingly, the court imposed a sentence in the bottom of the standard range.


                                                    37
               and corrupt      organizations.      The Commonwealth              introduced   Trooper

               Martinez's testimony to show intent and knowledge that his actions in

               Berks County were part of a conspiracy to distribute narcotics through a

              common scheme, plan, or design.           The court also made it clear on the

              record that    the charge of corrupt           organizations,       which required   the
,   ....,,.
en            Commonwealth to prove two or more acts of racketeering, did not include

              the offenses committed in Berks County as the acts of racketeering.                   At

              sentencing, the undersigned stated on the record "the need to differentiate

              the crimes committed in Berks County from Montgomery County" as the

              reason for imposing an aggregate sentence that runs consecutive to the

              Berks    County    sentence.       The court     acted within its discretion         and

              Appellant's final issue warrants no relief.


              V.      CONCLUSION

                      Based upon the foregoing analysis, this court respectfully requests

              that the Superior Court affirm Appellant's judgment of sentence.


                                                  BY THE COURT~~

                                       --        ------;'~        ~~
                                                                  <, -~
                                                  THOMAS P. ROGERS,           I
                                                                                    t~
                                                  Court Of Common Pleas
                                                  Montgomery County, Pennsylvania
                                                  38th Judicial District


              Copies sent on 06/21/ 16 to:
              By E-Mail:
              Robert M. Falin, Deputy District Attorney,

                                                       38
 {/;.




        Montgomery County District Attorney's Office
        Sean E. Cullen, Esquire, Counsel for Appellant, Alejandro Ruiz Cabrera
        By First-Class Mail:
        Alejandro Ruiz Cabrera, LV6231
        SCI Houtzdale
        209 Institution Dr.
l-":    Houtzdale, PA 16651

(~}I
,.,,.
rn




                                           39
