J-S31019-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :      IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                       Appellee          :
                                         :
           v.                            :
                                         :
JOSUE PICHALDO,                          :
                                         :
                       Appellant         :      No. 1676 EDA 2013


       Appeal from the Judgment of Sentence Entered May 7, 2013,
          In the Court of Common Pleas of Philadelphia County,
           Criminal Division, at No. CP-51-CR-0006994-2011.


BEFORE: BOWES, SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                              FILED JULY 31, 2014

     Appellant, Josue Pichaldo, appeals from the judgment of sentence

entered May 7, 2013, following his conviction of possession of a controlled



possession of drug paraphernalia, and conspiracy. We affirm.

     The trial court summarized the facts of the case as follows:

            On March 29, 2011, at approximately 6:30 p.m., [O]fficers
     [Richard] Woertz and Myers[1] conducted surveillance on the
     3400 block of G Street in Philadelphia to investigate alleged
     illegal narcotics activity. Officer Woertz testified that shortly
     after commencing the surveillance, Appellant, Josue Pichaldo,
     exited the residence under surveillance, 3437 G Street,
     approached a red and white SUV parked near the property,
     engaged the driver in conversation and proceeded to pass an
     unidentified object to the driver. In return, the driver handed



1
                         e is not identified in the certified record.
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     Appellant a white bag which Appellant placed under his shirt and
     returned to the property.

           [That same day,] [t]he officers then met with a
     confidential informant (CI) whom they searched and confirmed
     he had nothing in his possession. Officer Woertz supplied the CI
     with $300 prerecorded buy money and sent him to the 3400
     block of G Street while the officers conducted surveillance.
     Officer Woertz observed Appellant approach the CI and the CI
     handed Appellant the $300 of prerecorded buy money.
     Appellant then handed the CI a rectangular object wrapped in
     newspaper. The CI returned to the officers and at which time
     the officers opened the package and found 10 bundles of alleged
     heroin totaling 140 packets. The packets were stamped with
                         contents of the packets tested positive for
     heroin . . . totaling . . . 2.148 grams.

           The following day, March 30, 2011, Officers Woertz and
     Myers again conducted a surveillance of the property 3437 G
     Street.    At approximately 2:30 p.m., Appellant and Gabriel
              [2]
     Martinez     exited the property, walked over to a black Chrysler
     300M taxi and drove to the intersection of Rising Sun Avenue
     and Tiber Street. There, Appellant and Mr. Martinez exited the
     vehicle and walked west on Tiber Street until they approached a
     middle-aged Hispanic male. Appellant engaged the individual in
     conversation and preceded to hand the individual an unknown
     amount of money. The male, in return, handed Appellant an
     object and Appellant and Mr. Martinez returned to the black taxi
     and began driving away. Officers Woertz and Myers stopped the
     taxi near the intersection of F and Tioga Streets. As they
     approached the vehicle, the officers witnessed Appellant remove
     an object from his pocket and place it under his right leg.
     Appellant was removed from the vehicle and the officers found a
     4x6 clear sandwich bag containing a substance later tested to be
     heroin totaling 9.233 grams in weight.

             The officers obtained a search warrant and executed a
     search of 3437 G Street at approximately 6:30 p.m. on March
     30, 2011. Inside the residence, the officers recovered a DirecTV
     bill in the name of Mr. Martinez located in the dining room on the


2
                             -defendant at trial.

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      ground floor with numerous premium channel purchases
      throughout the month of March 2011.         Additionally in the
      basement, the officers recovered 5 bundles of heroin totaling 70
      packets, a grinder with residue, a strainer with residue, a
      toothbrush with residue, a straw with residue, numerous new

      stapler, a scale, and numerous rubber bands. These were all
      located in an exposed hole in the wall approximately eight inches
      in circumference in the back of [the] basement located above a
      dresser.    The basement is only accessible from inside the
      residence.

Trial Court Opinion, 8/7/13, at 2 3.

      Appellant was charged with possession of a controlled substance,

PWID, possession of drug paraphernalia, and conspiracy. Following a bench

trial on February 12, 2013, the trial court found Appellant guilty of all

charges.   N.T., 2/12/13, at 57 58.          On May 7, 2013, the trial court

sentenced Appellant to five to ten years of imprisonment for conspiracy and

a concurrent term of five to ten years of imprisonment for PWID. 3        N.T.,

5/7/13, at 4 6. Appellant filed a timely appeal on June 5, 2013.

      On June 18, 2013, the trial court ordered Appellant to file, within

twenty-one days or by July 9, 2013, a concise statement of errors

complained of on appeal.       Appellant filed an untimely Rule 1925(b)

statement on July 15, 2013. Statement of Errors Complained of on Appeal,




3
  The trial court found that possession of a controlled substance merged with
PWID for the purposes of sentencing. Order, 5/7/13, at 1. Additionally, no
further penalty was imposed for possession of drug paraphernalia. Id.

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and on August 7, 2013, the trial court issued its opinion pursuant to

Pa.R.A.P. 1925(a).

      Preliminarily, we address the late filing of the Rule 1925(b) statement.



twenty-one days of June 5, 2013, or by July 9, 2013, but it was not filed

until July 15, 2013. This Court repeatedly has held that the failure to file a

Rule 1925 statement constitutes per se ineffective assistance of counsel.

See, e.g., Commonwealth v. McBride, 957 A.2d 752 (Pa. Super. 2008)

(failure of defense counsel to file concise statement of errors complained of

on appeal constituted per se ineffectiveness); Commonwealth v. Scott,



is per se ineffectiveness). We have reached the same result when presented

with an untimely filing. Commonwealth v. Thompson, 39 A.3d 335 (Pa.

Super. 2012); Commonwealth v. Burton, 973 A.2d 428 (Pa. Super.

2009). When counsel has filed an untimely Rule 1925(b) statement and the

trial court has addressed those issues, however, we need not remand and

may address the merits of the issues. Thompson, 39 A.3d at 340.

      In the present case, in its August 7, 2013 opinion, the trial court

addressed the issue outlined in the late Rule 1925(b) statement, which

                                                               [Appellant] of

Possession with Intent to Distribute. Particularly, the Commonwealth failed




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to create a nexus between Appellant PICHALDO and the heroin and

                                                          Statement of Errors

Complained of on Appeal, 7/15/13, at 1.         Thus, we need not remand

pursuant to Pa.R.A.P. 1925(c)(3), and we will consider the issue.         See

Thompson

1925(b) statement and the trial court has addressed those issues[,] we need

not remand and may address the merits




Brief at 3 (full capitalization omitted). In the argument section of his brief,

Appellant narrows the issue and asserts that there is insufficient evidence to

find him guilty of PWID. Id. at 9 10.

      In reviewing the sufficiency of the evidence, we must determine

whether the evidence admitted at trial and all reasonable inferences drawn

therefrom, viewed in the light most favorable to the Commonwealth as

verdict winner, was sufficient to prove every element of the offense beyond

a reasonable doubt. Commonwealth v. James, 46 A.3d 776 (Pa. Super.

2012). It is within the province of the fact-finder to determine the weight to



the evidence.   Commonwealth v. Cousar, 928 A.2d 1025 (Pa. 2007);

Commonwealth v. Moreno, 14 A.3d 133 (Pa. Super. 2011).                     The




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Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly circumstantial

evidence.   Commonwealth v. Hansley, 24 A.3d 410 (Pa. Super. 2011).

Moreover, as an appellate court, we may not re-weigh the evidence and

substitute our judgment for that of the fact-finder.    Commonwealth v.

Ratsamy, 934 A.2d 1233 (Pa. 2007); Commonwealth v. Brown, 23 A.3d



resolved by the fact-finder unless the evidence is so inconclusive that as a

matter of law no probability of fact may be drawn from the circumstances.

Moreno, 14 A.3d at 133.

     In order to sustain a conviction for PWID, the Commonwealth must

establish possession of a controlled substance and intent to deliver it.   35

P.S. § 780-113(a)(3); Commonwealth v. Estepp, 17 A.3d 939, 944 (Pa.

Super. 2011).     If the contraband is not found on the defendant, the

Commonwealth must prove he had constructive possession of it.       Estepp,

17 A.3d at 944.

     The existence of constructive possession of a controlled
     substance is demonstrated by the ability to exercise a conscious
     dominion over the illegal substance: the power to control the
     illegal substance and the intent to exercise that control. An
     intent to maintain a conscious dominion may be inferred from
     the totality of the circumstances. Thus, circumstantial evidence
     may be used to establish constructive possession of the illegal
     substance.      Additionally, our Court has recognized that
     constructive possession may be found in one or more actors




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     where the item in issue is in an area of joint control and equal
     access.

Commonwealth v. Johnson, 26 A.3d 381, 1093 1094 (Pa. 2011) (internal

quotation marks and citations omitted).     The court may consider factors

such as the quantity of the controlled substance, the manner in which the

controlled substance was packaged, the behavior of the defendant, the

presence of drug paraphernalia, and large sums of cash found in possession

of the defendant when determining whether a defendant intended to deliver

a controlled substance. Ratsamy, 934 A.2d at 1237 1238.

     We note initially that we could find this issue waived.     Other than

citing case law defining constructive possession, Appellant fails to develop

the issue in any meaningful way in the argument section of his brief. See

Commonwealth v. Palo, 24 A.3d 1050, 1058 (Pa. Super. 2011) (waiving




argument presents only bald, conclusory, unsupported claims that lack

citation to the record and pertinent law. Nevertheless, we address the issue.

     Appellant posits that he was not in constructive possession of the

heroin found at 3437 G Street or in the vehicle. Our review of the record

compels the contrary conclusion.

     At trial, the Commonwealth presented the testimony of Officer Woertz,




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May 29, 2011, Officer Woertz set up surveillance outside of 3437 G Street,

where he observed Appellant engage in a transaction with the driver of a

vehicle parked nearby. N.T., 2/12/13, at 9 10. The driver gave Appellant a

white bag, which he placed under his shirt, and Appellant subsequently

entered the property of 3437 G Street. Id. Later that day, Officer Woertz

                                                 -recorded buy money, and

Officer Woertz observed the CI purchase 140 packets of heroin from

Appellant; the packets were                    Id. at 11 13.

     On May 30, 2011, Officers Woertz and Meyers witnessed Appellant and

Martinez leave the property at 3437 G Street and lock the door.          N.T.,

2/12/13, at 15. They then entered a black taxi, which they exited at Tiber

Street, whereupon Appellant and Martinez met a middle-aged Hispanic male.

Id. at 15 16. Appellant gave money to the unidentified male in exchange

for an object. Id. Appellant and Martinez returned to the taxi, which the

officers approached when it stopped at F and Tioga Streets. Id. at 16.

     The officers asked Appellant to exit the vehicle, and recovered

approximately nine grams of heroin, which they recovered from the seat

where Appellant was sitting. N.T., 2/12/13, at 16. Appellant and Martinez

were arrested, and two keys for 3437 G Street were found on Martinez. Id.

After he was arrested, Appellant told Officer Woertz that 3437 G Street was

his address. Id. at 47. The officers subsequently executed a search warrant




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for 3437 G Street at 6:30 p.m. on May 30, 2011, and recovered a DirecTV



                                                     Id. at 19 20.

       The record compels the conclusion that the Commonwealth presented

sufficient evidence to enable the trial court, as the fact-finder, to determine

that each element of PWID was proven beyond a reasonable doubt.

Appellant was seen entering and exiting 3437 G Street over the two-day

investigation. N.T., 2/12/13, at 10, 15. He told Officer Woertz that 3437 G

Street was his address.     Id. at 47.      The packaging of the heroin that

Appellant sold to the CI matched the paraphernalia found at 3437 G Street.

Id

pack

with Martinez, it is clear that the Commonwealth presented sufficient

evidence to establish that Appellant was in constructive possession of the

heroin found at 3437 G Street. Id. at 10, 13, 15, 16, 19.

       Moreover, there is also sufficient evidence to prove Appellant was in

constructive possession of the 9.223 grams of heroin found in the vehicle.

After the officers observed Appellant give the unknown Hispanic male money

in exchange for an object, they saw Appellant remove an object from his

pocket and place it under his right leg on the seat of the car. N.T., 2/12/13,

at 16. The circumstances of the transaction and the location of the heroin




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on the seat demonstrated that Appellant was in constructive possession of

the heroin found in the vehicle.

      In addition to proving constructive possession of the heroin found at



intent to deliver the heroin. The quantity of heroin recovered, the way the

heroin was packaged, and the presence of the stamp pad and other drug



heroin found at 3437 G Street and in the vehicle. Ratsamy, 934 A.2d at

1237 1238.     This evidence, viewed in the light most favorable to the

Commonwealth, while circumstantial, established that Appellant was in

constructive possession of the heroin and intended to deliver it.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/31/2014




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