J-S56023-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOSE LUIS SANTIAGO

                            Appellant                No. 2219 MDA 2013


          Appeal from the Judgment of Sentence of September 23, 2013
               In the Court of Common Pleas of Lancaster County
               Criminal Division at Nos.: CP-36-CR-0005359-2012
                                          CP-36-CR-0005383-2012


BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY WECHT, J.:                        FILED SEPTEMBER 12, 2014

       Jose Luis Santiago appeals the September 23, 2013 judgment of

sentence, which was imposed following a jury trial that resulted in Santiago

being found guilty of two counts of delivery of a controlled substance. 1 We

affirm.

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

       In January of 2011, Anthony Munoz, a confidential informant

       Police in conducting a series of controlled purchases of cocaine,

       purchases drugs from a street level dealer.           The trooper
       searches the CI before and after the sale, and never allows the
       CI to leave his sight throughout the entire transaction. Once the
____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
1
       35 P.S. § 780-113(a)(30).
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     purchase is complete, the dealer is not immediately arrested in


     On January 14, 2011, at approximately 6:45 p.m., Mr. Munoz

     purchase of cocaine. Mr. Munoz agreed to purchase half of an
     ounce, or 14 grams, of cocaine from Lou for $575.00, and
     arranged to meet him five to ten minutes later on South Duke
     Street in Lancaster City. After searching Mr. Munoz to ensure
     that he was not carrying any personal money or drugs, Trooper
     Cessna provided him with $575.00 in pre-recorded State Police
     Fund money to conduct the transaction. Trooper Cessna then
     transported Mr. Munoz to the meeting location and instructed
     him to get out of the vehicle and to wait for Lou to arrive.

     Several minutes later, Lou picked Mr. Munoz up in a white Ford
     Expedition and took him to the area of Marion and North Ann
     Streets in Lancaster City, which is within a Drug Free School
     Zone. Trooper Cessna followed the Expedition, ensuring that he
     never lost sight of Mr. Munoz. After parking his vehicle, Lou took
     the $575.00 from Mr. Munoz and walked around the corner to a
     house on Marion Street. Five minutes later, Lou returned and
     provided Mr. Munoz with a bag containing a white substance.
     Lou then transported Mr. Munoz back to South Duke Street,
     where he met with Trooper Cessna at a pre-arranged location.
     Mr. Munoz provided Trooper Cessna with the substance that he
     had purchased, and a second full body search was conducted,
     which yielded no other money or contraband.

     When Trooper Cessna returned to the police station, he
     performed a field test on the white substance which yielded a
     positive result for the presence of cocaine. Ultimately, the white
     substance was identified by the Pennsylvania State Police
     Forensic Laboratory as 14.1 grams of cocaine.

     On January 27, 2011, Mr. Munoz made a second controlled
     purchase of cocaine from Lou. This time, Mr. Munoz purchased
     one ounce of cocaine from Lou for $1,150.00. All other elements
     of the sale were nearly identical to the first transaction: Lou
     picked Mr. Munoz up on South Duke Street, transported him to
     the intersection of Marion and North Ann Streets, collected the
     money, briefly left the vehicle, and returned with the cocaine.
     Once again, Trooper Cessna followed Mr. Munoz throughout the
     entire interaction.   After the purchase, Mr. Munoz provided
     Trooper Cessna with a second bag containing a white substance

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        which was later identified by the Pennsylvania State Police
        Laboratory as 26.8 grams of cocaine.

        On April 18, 2012, Mr. Munoz contacted Trooper Cessna and

        name was Jose Santiago. Trooper Cessna showed Mr. Munoz a
        photograph of [Santiago], who Mr. Munoz identified as being the
        same individual that he knew as Lou and had purchased cocaine
        from on two occasions.       Trooper Cessna also recognized
        [Santiago] as Lou. As a result of the positive identifications,
        Trooper Cessna charged [Santiago] with two counts of delivery
        of cocaine.

                                                    -4. (headings, citations to

notes of testimony, and footnote omitted; some capitalization modified).

        Following a jury trial, Santiago was convicted of both counts on July 9,

2013.    On September 23, 2013, Santiago was sentenced to an aggregate



expiration of the statutory deadline for filing a notice of appeal, Santiago

sought leave of the trial court to file an appeal nunc pro tunc. On November



appellate rights nunc pro tunc.        Santiago filed a notice of appeal on

December 12, 2013.

        On December 16, 2013, the trial court directed Santiago to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b), to be served on the court no later than January 6, 2014. Santiago

filed a timely concise statement on January 2, 2014. On February 28, 2014,

the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).

        Santiago raises the following issue for our review:



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      Whether the lower court erred in determining that the evidence
      is legally

Brief for Santiago at 4.

      Santiago claims that the evidence was insufficient to support his




See Brief for Santiago at 9. The Commonwealth argues that it may sustain

its burden entirely with circumstantial evidence, that physical evidence is not

required, and that the jury was free to believe that the testimony was

reliable. See Brief for Commonwealth at 6, 8.

                                  rding the sufficiency of the evidence is

based, in part, upon an assertion that the jury should not have believed the



                                                                      l history,

which includes drug-related convictions and the crimina falsi of theft and

receiving stolen property, and because the initial description of the actor

provided in the narrative that Trooper Cessna prepared shortly after

observing the offense lacked sufficient detail to identify Santiago. However,

a sufficiency of the evidence claim, the type that Santiago asserts in his brief

and raised in his concise statement, does not include an assessment of the

credibility of the testimony offered by the Commonwealth. Commonwealth

v. Wilson, 825 A.2d 710, 713-14 (Pa. Super. 2003). Rather, an argument




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                                                   Commonwealth v. Gibbs,

981 A.2d 274, 281 82 (Pa. Super. 2009). Santiago essentially is asking this

Court to assess the weight, not the sufficiency, of the evidence. Santiago

did not preserve a challenge to the weight of the evidence by raising such a

challenge before the trial court in a post-sentence motion.2 He also does not

address a weight challenge in his brief. Thus, to the extent that Santiago is

advancing a weight claim in this appeal, such a claim has not been properly

preserved and is waived.

       Beyond the credibility issue, Santiago argues that the testimony

provided at trial was insufficient to sustain his convictions. When reviewing

challenges to the sufficiency of the evidence, our standard of review is as

follows:

       The standard we apply in reviewing the sufficiency of the
       evidence is whether viewing all the evidence admitted at trial in
       the light most favorable to the verdict winner, there is sufficient
       evidence to enable the fact-finder to find every element of the
       crime beyond a reasonable doubt. In applying [the above] test,
       we may not weigh the evidence and substitute our judgment for
       the fact-finder.    In addition, we note that the facts and
       circumstances established by the Commonwealth need not
       preclude every possibility of innocence. Any doubts regarding a
                  s guilt may be resolved by the fact-finder unless the
       evidence is so weak and inconclusive that as a matter of law no
       probability of fact may be drawn from the combined
       circumstances. The Commonwealth may sustain its burden of
____________________________________________


2
      A claim that the verdict was against the weight of the evidence must
be raised with the trial judge in a motion for a new trial either (1) orally, on
the record, at any time before sentencing, (2) by written motion at any time
before sentencing, or (3) in a post-sentence motion. Pa.R.Crim.P. 607.



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     proving every element of the crime beyond a reasonable doubt
     by means of wholly circumstantial evidence.         Moreover, in
     applying the above test, the entire record must be evaluated and
     all evidence actually received must be considered. Finally, the
     [finder] of fact while passing upon the credibility of witnesses
     and the weight of the evidence produced, is free to believe all,
     part or none of the evidence.

Commonwealth v. Phillips, 93 A.3d 847, 856 (Pa. Super. 2014) (citations

omitted). Further, in viewing the evidence in the light most favorable to the

Commonwealth as the verdict winner, the court must give the prosecution

the benefit of all reasonable inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

     Santiago was convicted of two counts of delivery of a controlled

substance in violation of 35 P.S. § 780-113(a)(30).

     The crime of delivery of a controlled substance is defined as follows:

     (a) The following acts and the causing thereof within the
     Commonwealth are hereby prohibited:


                               *     *     *

     (30) Except as authorized by this act, the manufacture,
     delivery, or possession with intent to manufacture or deliver, a
     controlled substance by a person not registered under this act,
     or a practitioner not registered or licensed by the appropriate
     State board, or knowingly creating, delivering or possessing with
     intent to deliver, a counterfeit controlled substance.

35 P.S. § 780-113(a)(30) (emphasis added).

     The term delivery, as used in this section, is defined by the Controlled

Substance, Drug, Device

attempted transfer from one person to another of a controlled substance,


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other drug, device or cosmetic whether or not there is an agency

                            -102. For a defendant to be guilty of delivery of

a controlled substance, the Commonwealth must present evidence that the

charged defendant knowingly made an actual, constructive, or attempted

transfer of a controlled substance to another person without the legal

authority to do so. Commonwealth v. Murphy, 844 A.2d 1228, 1234 (Pa.

2004).

     Viewing the evidence of record in the light most favorable to the

Commonwealth, the evidence was more than sufficient to sustain both of

                                                                         two

occasions, Santiago knowingly made an actual transfer of a controlled

substance to Mr. Munoz without the legal authority to do so. Santiago first

sold 14.1 grams of cocaine to Mr. Munoz in exchange for $575.00, and on a

second occasion, Santiago sold 26.8 grams of cocaine to Mr. Munoz in

exchange for $1,150.00.

     Mr. Munoz testified that, on both occasions before they executed the



provided Mr. Munoz with the money for the drug transaction, and dropped

him off near the pre-arranged meeting area.        Mr. Munoz testified that

Santiago met him at the designated area and drove the two of them to the

same intersection on both occasions.     Once at the intersection, Santiago

took the money from Mr. Munoz and left the vehicle to go around a corner.

After five or ten minutes, Santiago returned to the vehicle and provided Mr.

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Munoz with a bag containing cocaine, which Mr. Munoz then delivered to

Trooper Cessna.     Mr. Munoz testified that he did not know

name at the time of the transactions, but learned it afterwards. Mr. Munoz

identified Santiago by a photograph that Trooper Cessna provided to him,

and he identified Santiago during the trial as the individual who had sold the

cocaine to him.




Mr. Munoz and provided him with pre-recorded State Police Fund money to

complete the transaction. Trooper Cessna followed and observed Mr. Munoz

and Santiago while they conducted their business.                 He then recovered the

cocaine from Mr. Munoz and searched Mr. Munoz again, confirming that the



Cessna identified Santiago as the individual that he followed and had seen

engaging in these drug transactions.

       Finally, Santiago argues that the evidence was insufficient to sustain

his   convictions   for   delivery    of      a    controlled    substance    because    the

Commonw

                                                                              See Brief for

Santiago at 7, 10. This argument not only ignores the evidentiary value of

the   testimony,    but   it   also   fails       to   account   for   the   fact that   the




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crime beyond a reasonable doubt by means of wholly circumstantial

              Phillips, 93 A.3d at 856.

        The   jury    elected    to     believe   the   evidence    presented   by   the

Commonwealth and determined that the evidence was sufficient to find

Santiago guilty beyond a reasonable doubt. This Court will not disturb the

fact-

the evidence is so weak and inconclusive that as a matter of law no



Phillips,     93     A.3d   at   856.       As    the   testimony    provided   by   the



of a controlled substance and identified Santiago as the individual who

committed this crime beyond a reasonable doubt, the evidence is not too

weak or inconclusive to sustain the convictions.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/2014




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