J-A29017-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JULIO CESAR TORRES                         :
                                               :
                         Appellant             :   No. 1600 WDA 2018


       Appeal from the Judgment of Sentence Entered, October 11, 2018,
               in the Court of Common Pleas of Allegheny County,
             Criminal Division at No(s): CP-02-CR-0015964-2017.

BEFORE:      BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY KUNSELMAN, J.:                             FILED MARCH 13, 2020

        Julio Cesar Torres appeals from the judgment of sentence imposed

following his conviction of possession with intent to deliver (“PWID”),

possession     of    a   controlled   substance    (heroin),   possession   of   drug

paraphernalia, and criminal conspiracy.1 We affirm.

        The trial court set forth the relevant findings of fact, as follows:

              On August 4, 2016, Trooper Patrick Bouch of the
        Pennsylvania State Police received a tip on his cell phone alerting
        him that two suspicious individuals, Fasseem McPherson
        (McPherson) and Julio Torres (Appellant) checked into the Comfort
        Inn on Banksville Road. The individuals arrived at 7:30 a.m., an
        unusual time to check into a hotel, with only one suitcase between
        them. The person relaying the tip indicated that the individuals
        booked a room through a third-party online provider, and the
        room was unavailable when they tried to check-in. . . . Trooper
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   See 35 Pa.C.S.A. §§ 780-113(a)(16), (30), (32); 18 Pa.C.S.A. § 903.
J-A29017-19


     Bouch ran a background check on McPherson, and based on those
     results he decided to investigate further by establishing
     surveillance on [Torres] and McPherson.        Surveillance was
     established at 12:30 p.m. on August 4, 2016, at the Comfort Inn.

            Approximately eight times over a twelve hour period the two
     individuals came out of the hotel to smoke cigarettes, listen to
     music, and talk on their cell phones. They also made trips to a
     nearby Eat ‘n Park and gas station convenience store [for snacks
     and deodorant] and immediately returned to the hotel. [They also
     asked the hotel for a toothbrush.] Their behavior was considered
     to be inconsistent with normal visitor patterns by investigators,
     and consistent with potential drug dealing activity.

           [Torres] and McPherson were observed exiting the hotel late
     the next morning wearing the same clothing they had on the
     previous day. They were picked up by a zTrip taxi and carried the
     same suitcase they were observed carrying the day before.
     [Torres] loaded the suitcase into the taxi and both men traveled
     to downtown Pittsburgh. Surveillance of the zTrip taxi revealed
     an unusual path of travel consistent with someone attempting to
     evade law enforcement.

           [Torres] and McPherson exited the taxi with the suitcase at
     the corner of 10th and Liberty in downtown Pittsburgh and went
     to the Ten Penny Restaurant. After eating at the restaurant, the
     two men walked to the Greyhound Bus Station with the same
     suitcase. [Torres] entered the bus station while McPherson stood
     outside the “discharge” area with the suitcase. They remained
     there a short time and then got into a zTrip taxi and departed. A
     short time later they arrived at the Double Tree Hotel (actually
     across the street from the bus station) still in possession of the
     suitcase. They paid cash for a room at the Double Tree and exited
     the hotel at approximately 2:13 p.m. without the suitcase.

           Around 4 p.m. they were observed walking on 6th Avenue
     in downtown Pittsburgh, and [Torres] was carrying a brand new
     Adidas gym bag with the tags still attached. When they returned
     to the lobby of the Double Tree hotel, Trooper Bouch and members
     of the surveillance unit approached [Torres] and engaged in a
     conversation with him. [Torres] immediately [became] nervous
     and would not make eye contact. Trooper Bouch questioned
     [Torres] about his travel plans in the Pittsburgh area and how he
     was employed. [Torres] responded that he was in the music

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      business and that he was there for a concert at the “Pittsburgh
      City College” (no such institution exists).

            At that time, Trooper Bouch asked [Torres] for his consent
      to search his hotel room. [Torres] replied that McPherson was the
      one who had rented the room and that he had the key. [Torres’]
      bag was searched revealing new items such as socks, toiletries,
      T-shirts, which Trooper Bouch found suspicious as it indicated to
      the officer that they did not know how long they would be in the
      Pittsburgh area. Trooper Bouch then spoke to McPherson, who
      was sweating profusely, acting nervous, and rubbing his stomach.
      Trooper Bouch requested permission to search their hotel room.
      McPherson became agitated about being “kicked out” of his hotel
      room, so officers arranged for an alternate room for [Torres] and
      McPherson to occupy while a warrant was obtained and their room
      was searched. [Torres] then accepted the keys to the other room,
      thanked them, and both [Torres] and McPherson then left the
      hotel and did not return.

            A search warrant was issued and the hotel room was
      searched, wherein the suitcase carried by [Torres] and McPherson
      was located. A pair of headphones and hat identical to those
      [Torres] and McPherson were seen wearing the previous day were
      found on the TV stand in the room. A Nike shoe box was also
      discovered in the room, which was found to contain a significant
      amount of packaged heroin (approximately 9,000 stamp bags),
      and $11,000 in U.S. currency.          [Police also found drug
      paraphernalia in the zippered compartment of the silver suitcase
      (boxes of rubber bands for drug packaging).] . . . Police estimated
      the street value of the heroin between $27,000 and $63,000,
      depending whether it was being sold in bulk or as individual
      packets.

            [Torres] was later arrested in New York, extradited to
      Pittsburgh, and charged [with various drug related offenses and
      conspiracy].

Trial Court Opinion, 6/25/19, at 4-7.

      Torres moved to suppress the heroin and currency found in the hotel

room on the basis that police lacked probable cause to support the warrant

issued for the search.    The trial court denied suppression.      The matter


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proceeded to trial, at the conclusion of which a jury convicted Torres of the

above-described offenses.         The trial court sentenced him to an aggregate

prison term of five to ten years. Torres filed a timely notice of appeal.2 Both

Torres and the trial court complied with Pa.R.A.P. 1925.

       Torres raises the following issues for our review:

       I. Did the trial court err by concluding that there was sufficient
       probable cause to support the issuance of a search warrant?

       II. Was there insufficient evidence to prove, beyond a reasonable
       doubt, that [Torres] possessed any controlled substances or
       paraphernalia, or that he entered into a criminal conspiracy
       related thereto?

       III. The jury posed a question to the trial court regarding the
       difference between “common sense” and “conjecture” in the
       decision-making process. Did the trial court err in providing its
       impromptu instruction to the jury in this regard?

Torres’ Brief at 6.

       In his first issue, Torres challenges the denial of suppression. On appeal

from the denial of a suppression motion:

       Our standard of review . . . is whether the record supports the
       trial court’s factual findings and whether the legal conclusions
       drawn therefrom are free from error. Our scope of review is
       limited; we may consider only the evidence of the prosecution and
       so much of the evidence for the defense as remains
       uncontradicted when read in the context of the record as a whole.
       Where the record supports the findings of the suppression court,

____________________________________________


2 The trial court imposed its sentence on October 11, 2018, giving Torres until
November 10, 2018 to file his appeal. That date fell on a Saturday, and the
following Monday, November 12, 2018, was a legal holiday. See 1 Pa.C.S.A.
§ 1908.Thus, we consider his appeal filed on November 13, 2018, to be timely
filed.

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      we are bound by those facts and may reverse only if the court
      erred in reaching its legal conclusions based upon the facts.

Commonwealth v. Galendez, 27 A.3d 1042, 1045 (Pa. Super. 2011) (en

banc) (citation omitted).     Additionally, “appellate courts are limited to

reviewing only the evidence presented at the suppression hearing when

examining a ruling on a pretrial motion to suppress.” Commonwealth v.

Bush, 166 A.3d 1278, 1281-82 (Pa. Super. 2017) (citation omitted). “It is

within the suppression court’s sole province as factfinder to pass on the

credibility of witnesses and the weight to be given their testimony.” Id. at

1282 (citation omitted).

      Further, our standard of review of the sufficiency of probable cause

underlying a search warrant is well-settled:

      [The] reviewing court is not to conduct a de novo review of the
      issuing authority’s probable cause determination, but is simply to
      determine whether or not there is substantial evidence in the
      record supporting the decision to issue a warrant . . . In so doing,
      the reviewing court must accord deference to the issuing
      authority’s probable cause determination, and must view the
      information offered to establish probable cause in a
      commonsense, non-technical manner.

Commonwealth v. Gagliardi, 128 A.3d 790, 794 (Pa. Super. 2015) (citation

omitted). “If a substantial basis exists to support the magistrate’s probable

cause finding, [the suppression court] must uphold that finding even if a

different magistrate judge might have found the affidavit insufficient to

support a warrant.” Id. at 795 (citations omitted).




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       The trial court considered Torres’ first issue and determined that it

properly denied suppression because the affidavit of probable cause amply

supported the issuance of a search warrant. It reasoned as follows:

       The affidavit of probable cause in this case clearly established the
       requisite enforcement’s surveillance of [Torres] and McPherson
       evidenced several key characteristics and behaviors of persons
       trafficking narcotics. Specifically, their suspicious movements in
       the Pittsburgh area, paying cash for hotel rooms, lacking sufficient
       luggage for the trip, purchasing a new bag and personal items
       while on the trip, their drug-related criminal histories, attempting
       to elude law enforcement, giving conflicting/false stories as to why
       they were in Pittsburgh, and their nervous demeanor upon being
       confronted by law enforcement all clearly establish that sufficient
       probable cause existed for the issuance of the search warrant.

Trial Court Opinion, 6/27/19, at 8-9.

       Torres initially challenges the trial court’s denial of suppression based

on its finding that the officers’ observations of Torres and McPherson aligned

with certain indicators of criminal activity known as a “drug courier profile.”

Torres’ Brief at 26.3 According to Torres, the actions which the trial court



____________________________________________


3 Citing to Commonwealth v. Lewis, 636 A.2d 619 (Pa. 1994), Torres
additionally contends that our Supreme Court has expressed reservations
about law enforcement’s reliance on drug courier profiles to arouse reasonable
suspicion to conduct an investigatory stop. See id. at 624 (holding that “[a]
drug courier profile should serve only as a starting point of, and not as a
substitute for, independent observation of an individual’s behavior”).
However, Lewis is inapposite, as it involved a challenge to an investigatory
stop followed by a warrantless search, rather than an investigatory stop
followed by a search conducted pursuant to a warrant, as occurred herein.
Notably, Torres does not challenge the investigatory stop by police. Moreover,
the affidavit of probable cause supporting the search warrant issued in this
matter provided ample independent observation of Torres’ and McPherson’s
suspicious behavior by police.

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found to be consistent with a drug courier profile, such as lacking sufficient

luggage for the trip, purchasing a new bag and personal items, were also

consistent with the behavior of a tourist on a short stay or a business executive

staying in town longer than expected. With respect to his nervous demeanor,

he argues that most citizens are likely to exhibit some signs of nervousness

when confronted by police officers. Torres additionally argues that police had

no basis to conclude that he appeared nervous, since they had never

encountered him before and were unfamiliar with his normal disposition. He

further asserts that there is an innocent explanation for his nervous demeanor,

namely, that he suffered nerve damage and is used to dealing with NYPD,

“who strong-arm people.” Id. at 32.

      Torres additionally challenges the trial court’s finding of probable cause

based on “conflicting/false statements.”      Id.    Torres argues that “only the

statements    attributable    to   McPherson        may     objectively   be    called

‘conflicting/false stories’ based on the four corners of the affidavit.” Id. at 33-

34.   He claims that the trial court had no basis to conclude that Torres’

statements to police were objectively false or conflicting. According to Torres,

the   conflicting/false   statements,    coupled     with    the   totality    of   the

circumstances, provided at most, only a fifty percent probability that

contraband would be found in the Double Tree hotel room.

      Based on our review, we conclude that there is substantial evidence in

the record supporting the decision to issue a warrant. The police officer who


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prepared the affidavit of probable cause had more than twenty years of

experience with drug dealing and trafficking investigations. In his affidavit,

he detailed certain actions, circumstances and patterns that are often

connected to the buying and selling of illegal narcotics.       In particular, he

explained that narcotics traffickers often travel to other locations without

knowing the exact day and time the exchange will take place and that, “[o]ften

times, it will take days to make sure that both parties have their narcotics and

currency ready in order to make the trade.”        Affidavit of Probable Cause,

8/5/16, at 6. The officer further explained that, for this reason, police look

for certain indicators of drug activity in every hotel in this vicinity, including

(1) guests visiting from drug source cities; (2) guests carrying large amounts

of cash and paying for rooms with cash; (3) guests arriving at unusual hours

without a reservation; (4) guests who frequently talk on a cellular phone; (5)

guests that seem to stay in their room more than normal; (6) guests that

have little or no luggage, and who may need to purchase luggage and clothing;

(7) guests who seem to be “killing time;” and (8) guests who appear

extremely nervous when encountered by police. See id. at 4-5.

      The affidavit indicates that police officers closely observed Torres’ and

McPherson’s activities for two days until they had ample evidence supporting

their suspicions that the men were engaged in unlawful activities.            The

contents of the five and one-half page affidavit detailed numerous actions by

Torres and McPherson, as observed by police, which were consistent with


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individuals dealing in illegal narcotics. The two men arrived from New York

City (an area synonymous with illegal drug activity) at 7:30 a.m. (an unusual

hour), and checked into the Comfort Inn with only a single suitcase between

them (little or no luggage). Id. at 5. On the first day of surveillance, police

observed the two men going in and out of their Comfort Inn room for several

hours, and talking on their cell phones (killing time and talking on cell phones).

Id. at 5. They took a taxi to a gas station approximately one mile away to

purchase deodorant and snacks. Id. When the taxi returned them to the

Comfort Inn, only Torres got out. Id. McPherson took the taxi approximately

70 yards away to another hotel, then walked back to the Comfort Inn. Id. At

some point that evening, the men asked the hotel for a toothbrush, providing

some indicia that the suitcase did not contain toiletries. Id.

        On the second day of surveillance, police observed that the men were

wearing the same clothing that they wore on the prior day, indicating that the

suitcase likely did not contain clothing. Id. at 6. The men checked out of the

Comfort Inn with the suitcase, and took a taxi to downtown Pittsburgh, where

they entered a restaurant with the suitcase, and then walked to the bus

terminal with the suitcase. Id. They then took a taxi around the downtown

area, only to arrive at the Double Tree Hotel, a mere three blocks from the

bus terminal. Id.     They then checked in to the Double Tree Hotel with the

suitcase and paid $300 in cash for a room (paying for room with cash). Id.

at _.    Police later observed the men walking around downtown Pittsburgh


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without the suitcase, but carrying a new gym bag with the price tag still on,

and which was filled with new clothes and toiletries (needing to purchase

luggage and clothing). Id.

      The affidavit also detailed objectively false information provided by both

individuals to police as to when they arrived in Pittsburgh, and inconsistent

information regarding the purpose of their visit. Torres, in particular, indicated

that he had arrived in Pittsburgh at 1:00 a.m. the prior day, when video

surveillance showed him checking in to the Comfort Inn at 7:30 a.m. Torres

indicated that he was in town to attend an event at the “Pittsburgh City

College,” when no such institution exists. Id. at 7. He indicated to police that

he had $500 in his pocket (large amounts of cash). Id. Finally, he indicated

that his only drug conviction was for a “little bit of weed,” when police were

aware that he had an extensive criminal history, including a prior conviction

for PWID. Id.

      Giving due deference to the issuing magistrate, we conclude that the

affidavit provided a reasonable basis upon which the issuing authority could

have made a common-sense decision that there was a probability that

evidence of criminal activity would be found in the Double Tree hotel room.

See Gagliardi, 128 A.3d at 794 (holding that the reviewing court must accord

deference to the issuing authority’s probable cause determination, and must

view the information offered to establish probable cause in a common-sense,

non-technical manner). While Torres argues that there could have been an


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innocent explanation for some of the factors considered by the magistrate,

the extent of the information contained in the affidavit, when considered in

totality, provided substantial evidence to issue the search warrant.        We

therefore affirm the trial court’s denial of suppression.

      In his second issue, Torres challenges the sufficiency of the evidence

supporting his convictions. Our standard of review of a sufficiency claim is as

follows:

      [W]e 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. 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. Nevertheless, the
      Commonwealth need not establish guilt to a mathematical
      certainty. [T]he facts and circumstances established by the
      Commonwealth need not be absolutely incompatible with the
      defendant’s innocence. Any doubt about the defendant’s guilt is
      to be resolved by the fact finder unless the evidence is so weak
      and inconclusive that, as a matter of law, no probability of fact
      can be drawn from the combined circumstances.

Commonwealth v. Franklin, 69 A.3d 719, 722 (Pa. Super. 2013) (citations

and quotation marks omitted). The finder of fact is free to believe all, part,

or none of the evidence presented, and determines the credibility of the

witnesses. Commonwealth v. Boyd, 73 A.3d 1269, 1274 (Pa. Super. 2013)

(en banc).

      Torres initially challenges the sufficiency of the evidence supporting the

possession element of his convictions for PWID, possession of a controlled

substance (heroin), and possession of drug paraphernalia. To establish PWID,


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the Commonwealth must prove “the manufacture, delivery, or possession with

intent to manufacture or deliver, a controlled substance by a person not

registered under this act.” 35 P.S.§ 780-113(a)(30). To establish possession

of a controlled substance, the Commonwealth must prove “[k]nowingly or

intentionally possessing a controlled or counterfeit substance by a person not

registered under this act.”     Id. § 780-113(a)(16).      Finally, to establish

possession of drug paraphernalia, the Commonwealth must prove “[t]he use

of, or possession with intent to use, drug paraphernalia for the purpose of

. . . packing, repacking, storing, containing, concealing, injecting, ingesting,

inhaling or otherwise introducing into the human body a controlled substance

in violation of this act.” Id. § 780-113(a)(32).

      Torres contends that there was no direct evidence that he actually

possessed either a controlled substance or drug paraphernalia.       He further

claims that the Commonwealth failed to establish that he constructively

possessed a controlled substance or drug paraphernalia. Torres argues that

the trial court’s conclusion that “the totality of the evidence established [his]

conscious dominion of the contraband” is flawed because the court never

instructed the jury on consciousness of guilt. Torres’ Brief at 42. He argues

that, without such an instruction, the jury had no basis to find or infer that

Torres knew of the contraband.        Torres also challenges the trial court’s

reasoning that the jury considered Torres’ “conduct and pattern of behavior”

as relevant to his intent. Id. at 45. Torres asserts that such a conclusion is


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speculative because the jury, during its deliberations, questioned whether it

could link Torres to possession of the heroin and agreeing to planning and

conducting the crimes.

      Torres concedes that the Commonwealth demonstrated that he had

actual and constructive possession of the suitcase, and that the clothes found

within the suitcase were more suited to his build than to McPherson’s build.

Nevertheless, Torres contends that such possession does not support a finding

that he knew about or possessed the heroin in the shoebox or the drug

paraphernalia. He claims that, in order to make such a finding, “one [must]

speculate or presume that he was rummaging through these items or he was

otherwise told of their contents.” Id. at 47.

      Finally, Torres contends that, if the evidence is insufficient to establish

his actual or constructive possession of the heroin and drug paraphernalia,

then the record must likewise be insufficient to demonstrate a conspiracy

predicated on such possession. Torres argues that the failure to show that he

had knowledge of the contraband negates any possibility of an agreement on

the matter. While Torres concedes that the amount of heroin found in his

hotel room, and its packaging, established that it was intended for distribution,

he argues that those facts do not indicate who intended to distribute the

heroin.

      As our Supreme Court has explained, “[c]onstructive possession is a

legal fiction, a pragmatic construct to deal with the realities of criminal law


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enforcement.” Commonwealth v. Johnson, 26 A.3d 1078, 1093-94 (Pa.

2011) (citation omitted).    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.”       Commonwealth v.

Valette, 613 A.2d 548, 550 (Pa. 1992) (citation omitted).         An “intent to

maintain a conscious dominion may be inferred from the totality of the

circumstances.”   Commonwealth v. Macolino, 469 A.2d 132, 134 (Pa.

1983). Thus, circumstantial evidence may be used to establish constructive

possession of the illegal substance.         Id.   Additionally, “[c]onstructive

possession may be found in one or more actors where the item in issue is in

an area of joint control and equal access.” Valette, 613 A.2d at 550.

      The trial court considered Torres’ sufficiency claim and determined that

it lacks merit. It reasoned as follows: “[c]learly the conduct and pattern of

behavior by both [Torres] and McPherson indicated that the suitcase and its

contents (9,000 baggies of heroin) was a valuable possession, and the center

of their activities in an effort to complete a major drug transaction.      The

totality of the evidence established [Torres’] conscious dominion of the

contraband . . ..” Trial Court Opinion, 6/27/19, at 11-12.

      Evaluating the record in the light most favorable to the Commonwealth

as the verdict winner, and giving the prosecution the benefit of all reasonable

inferences to be drawn from the evidence, we conclude that the evidence is


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sufficient to establish the possession element of the crimes charged. As noted

above, Torres concedes that the evidence established that he had both actual

and constructive possession of the suitcase. From the circumstantial evidence

presented, the jury could infer that Torres and McPherson secreted the shoe

box full of heroin and currency and the boxes of rubber bands within the

suitcase, and that Torres had both the intent and the power to exercise a

conscious dominion over those items. See Valette, 613 A.2d at 550.4 Thus,

Torres’ second issue warrants no relief.

       In his final issue, Torres contends that the trial court erred in providing

the jury with a supplemental instruction in response to the jury’s question

regarding the difference between common sense and conjecture. Specifically,

he argues that the instruction provided by the trial court was neither clear nor

accurate.

       The trial court determined that Torres waived the issue because he did

not raise it at trial. It reasoned as follows:

             During jury deliberations the jury submitted three questions
       to the trial court, one of which asked the court to distinguish
       between “common sense” and “conjecture” in the decision-making
       process. In response the trial court discussed that matter with
       counsel and after [Torres’] counsel objected to the court’s initial
       proposed instruction, the trial court gave an instruction that
____________________________________________


4 We note that Torres’ sufficiency claim regarding his conspiracy conviction is
predicated on the success of his sufficiency challenge to the possession
element of his other crimes. Based on our conclusion that the evidence of
record is sufficient to establish PWID, possession of a controlled substance,
and possession of drug paraphernalia, Torres’ challenge to the conspiracy
claim must also fail.

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      included [Torres’] counsel’s suggestion. The trial court then gave
      a jury instruction consistent with its discussion with counsel.

             At the conclusion of its instruction, the trial court asked both
      the Commonwealth and defense whether they had any proposed
      modifications or additions, at which time both counsels answered
      in the negative. As such, [Torres] was afforded every opportunity
      to raise an objection to the instruction as given but failed to do
      so.

Trial Court Opinion, 6/27/19, at 13-14 (some capitalization and citations to

the record omitted).

      Based on our review of the record, we agree with the trial court’s

determination that the issue is waived.        In order to preserve an issue for

appellate review, a litigant must make a timely and specific objection. See

Commonwealth v. Baumhammers, 960 A.2d 59, 73 (Pa. 2008) (holding

that a failure to offer a timely and specific objection results in waiver of the

claim). As this Court has explained:

            It is axiomatic that “[i]ssues not raised in the lower court
      are waived and cannot be raised for the first time on appeal.”
      Pa.R.A.P. 302(a). “The absence of a contemporaneous objection
      below constitutes a waiver” of the claim on appeal.
      Commonwealth v. Powell, . . . 956 A.2d 406, 423 ([Pa.] 2008);
      Tindall v. Friedman, . . . 970 A.2d 1159, 1174 (Pa. Super. 2009)
      (“On appeal, we will not consider assignments of error that were
      not brought to the tribunal’s attention at a time at which the error
      could have been corrected or the alleged prejudice could have
      been mitigated.”) (citation omitted)).

Commonwealth v. Smith, 213 A.3d 307, 309 (Pa. Super. 2019) (citation

omitted).

      At trial, the court discussed the jury’s question, and indicated to counsel

at a sidebar that “I intend to say is [sic] common sense is a practical judgment,

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and it has some rational component versus guesswork and perhaps taking a

leap.” N.T. Trial, 7/20/18, at 211. Torres’ counsel objected to the trial court’s

proposed response to the jury’s question. However, the sole basis for Torres’

objection was that it was up to each individual juror to determine the answer

to the question presented. The trial court then indicated that it would modify

its proposed response to the jury to include the language suggested by Torres’

counsel, and asked if such modification was acceptable to Torres.        Torres’

counsel responded in the affirmative and thanked the trial court.            That

discussion consisted of the following exchange:

      [Torres’ counsel:] For answering question three, as vague as it
      relates to question three, I know we are trying to be vague on
      how the [c]ourt is answering it, although I would formally
      object and indicate it is up to each individual juror to be
      guided to an answer on that. I don’t know if the [c]ourt should
      answer otherwise. Obviously, we are not trying to slant them one
      way or the other but –

      THE COURT: I will include that aspect that it is up to each juror to
      make the decision.

      [Torres’ counsel:] Okay.

      THE COURT: Based on their common sense and perceptions of
      common sense and conjecture, okay?

      [Torres’ counsel:] Thank you.

Id. at 212.

      Thereafter, the trial court provided the jury with an instruction regarding

the difference between common sense and conjecture, and specifically

included the language that Torres’ counsel requested. It stated:


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      As I told you, every person must decide the case for him or
      herself, but only after there has been fair and reasonable
      discussion between the jurors, hearing each other out, listening
      to the other person’s views. No juror should hesitate to change
      his or her view if you are convinced that it is erroneous. No one
      should give up a heartfelt opinion merely for the convenience of
      issuing a verdict. Again, you should have an open mind. Listen
      to the views of your fellow jurors in that regard. Now, common
      sense versus conjecture. This is a difficult question to answer in
      the sense that you ordinarily think commonsense is almost a self-
      defined term. Conjecture along that continuum shows a practical
      judgment with a rational component in it. I would suggest that
      conjecture is more guesswork and too big a leap in terms of one
      plus one in decision making to be comfortable with. Common
      sense seems to be practical judgement with rational overtone to
      it versus guesswork with more guesswork without that rational
      comfortable component. At this juncture, that’s all I can do with
      that question, hopefully that helps.

Id. at 217-18. After providing this instruction, the trial court specifically asked

counsel if there were “[a]ny proposed modifications or additions.” Id. at 219.

Torres’ counsel responded “[n]o, your honor.” Id.

      Importantly,     “[t]he    purpose       of   contemporaneous      objection

requirements respecting trial-related issues is to allow the court to take

corrective measures and, thereby, to conserve limited judicial resources.”

Commonwealth v. Sanchez, 36 A.3d 24, 32 (Pa. 2011). Here, the objection

which Torres now raises on appeal (i.e., that the instruction, as provided by

the trial court, was neither clear nor accurate) was not timely or specifically

raised before the trial court. Accordingly, the trial court was not provided with

an opportunity to address or correct any problems associated with the




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supplemental jury instruction it provided.5        Id.    As Torres failed to

contemporaneously raise these additional bases for objection in the trial court,

we decline to address them on appeal. See Commonwealth v. May, 584

Pa. 640, 887 A.2d 750, 761 (Pa. 2005) (holding that an absence of

contemporaneous objections renders an appellant’s claims waived)

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/2020




____________________________________________


5 Torres additionally argues that raising any objection “would have been
fruitless because the jury had been excused and was already leaving the
room.” Torres’ Brief at 54. While the record indicates that the jury was
leaving the room when the trial court asked if counsel had any proposed
modifications or additions, this fact did not excuse Torres from raising a timely
and specific objection to the supplemental instruction. It was incumbent on
Torres to bring to the trial court’s attention at that time that the instruction
provided was not clear or accurate, rather than indicating to the court that the
instruction provided was acceptable.

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