J-S60035-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JOSE LUIS GONZALEZ, JR.

                            Appellant                No. 309 MDA 2014


            Appeal from the Judgment of Sentence August 28, 2013
               In the Court of Common Pleas of Lebanon County
             Criminal Division at No(s): CP-38-CR-0000175-2013


BEFORE: OTT, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                      FILED DECEMBER 22, 2014

        Jose Gonzalez (“Appellant”) appeals the judgment of sentence imposed

on August 28, 2013, following his conviction for possession of a controlled

substance with intent to deliver (“PWID”),1 possession of a controlled

substance,2 and possession of drug paraphernalia.3 After careful review, we

affirm.

        The trial court summarized the trial testimony and procedural history

as follows:


____________________________________________


1
    35 P.S. § 780-113(a)(30).
2
    35 P.S. § 780-113(a)(16).
3
    35 P.S. § 780-113(a)(32).
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           The charges against [Appellant] stem from an incident that
     occurred on July 10, 2013 when several law enforcement officers
     presented themselves to 638 Oak Street, Apartment 4 in the
     City of Lebanon, Lebanon County, Pennsylvania for the purpose
     of executing an arrest warrant on [Appellant]. Upon entering
     the apartment Sergeant Jonathan Hess observed several people
     located inside the apartment, one of whom was [Appellant].

           After obtaining permission from [Appellant’s] mother,
     Wanda Gonzalez, who was the lessee of the apartment, Lebanon
     County Drug Task Force Detective Ryan Mong took part in the
     search of the specific bedroom in which [Appellant] was staying.
     During the search of [Appellant’s] bedroom, Det. Mong
     recovered 17 total bags of heroin, drug paraphernalia and new
     drug packaging baggies which were located on the nightstand by
     the bed. Several packets were laying below the nightstand. A
     photograph taken by Det. Mong showed a heroin packet, a
     sandwich baggy containing new drug packages and apple zip
     baggies containing heroin which were all located on the
     nightstand. There was an additional bag containing heroin on
     the floor. The apple zip baggie contained a bundle of heroin.
     Det. Mong testified that a bundle typically contains 10 packets of
     heroin in a single bundle rubber banded together. Det. Mong
     went on to state that typically when someone buys in bulk, a
     bundle of heroin typically comes in packets of 10.

           At trial, Det. Mong described Exhibits 12 and 13. Exhibit
     12 was a large apple zip baggy containing a bundle of heroin and
     the single small zip baggie of heroin found at the nightstand.
     Exhibit 13 was two used or unused larger zip baggies. In
     addition, there was a sandwich baggy containing numerous
     amounts of small clear colored zip baggies. The single packet of
     heroin in Exhibit 13 was the same size, shape and appearance of
     the new drug packaging baggies that were recovered from
     [Appellant’s] bedroom. Det. Mong showed the jury the 16
     glassine packets of heroin and a small zip baggy of heroin. He
     pointed out that it was the same size, shape and appearance as
     the new sandwich baggies containing new drug packaging.

           Sgt. Hess indicated that [Appellant] was taken into custody
     after an entire search of the apartment was conducted. Once in
     the patrol car, [Appellant] admitted to having items on his
     person for which he was going to be charged. A search of
     [Appellant] revealed synthetic marijuana, rolling papers and
     $34.00 in cash.

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           During the interview process, [Appellant] admitted to Det.
     Mong that the drugs and heroin found in the apartment belonged
     to him.     [Appellant] stated the following in his written
     statement:

     A.    . . . [T]he cops came into took [sic] everybody to the
     ground. I came out back after looking out the back window. I
     laid on the ground. I left 20 bags dope [sic] in the room I was
     in. I was about to get high when the boys showed up and they
     found the stuff that all belongs to me. Nobody in the house
     except me knew it was there.

           Given Det. Mong’s training and expertise, he believed that
     the heroin was possessed by [Appellant] with intent to deliver.
     Det. Mong based this belief upon the following factors:

       (1)    There were 17 bags of heroin recovered from the
              apartment.

       (2)    There was new drug packaging that was the same
              size, appearance, and shape of the single heroin
              baggy that was located in the residence.

       (3)    There is no reason for a heroin user to have new
              drug packaging.

       (4)    The most common way to inject heroin is through
              the use of hypodermic needle shooting in a vein; no
              such injection paraphernalia was located.

       (5)    A typical heroin user does not have 17 bags of
              heroin. They are usually unemployed and looking for
              the next high.

       (6)    Typical heroin addicts are malnourished, usually
              have diseases, are in trouble with the law, don’t take
              care of themselves, and rarely have enough money
              to be able to afford a residence. In addition, heroin
              users often appear drowsy, in and out of
              consciousness, delayed in speech, and unable to
              function at a high level. [Appellant] did not exhibit
              these characteristics.

           Lebanon County Prison Counselor Tina Verna testified that
     part of her job requires her to ask every male inmate coming
     into the prison several questions which are recorded on a pre-
     printed form. On January 14, 2013, Counselor Verna questioned

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       [Appellant] as to whether or not he had a drug and alcohol
       dependency. [Appellant] responded yes to alcohol. [Appellant]
       stated that he was an alcoholic but did not mention anything
       about having a heroin addiction.

            [Appellant] was found guilty on all counts and was
       sentenced on August 28, 2013 to a sentence within the
       suggested sentencing guidelines. [Appellant] filed timely Post-
       Sentence Motions on September 9, 2013 challenging the weight
       and sufficiency of the evidence.

Trial Court Post-Sentence Motion Opinion, January 3, 20144 (“Trial Court

Opinion”), pp. 1-5 (record citations and capitalizations omitted).

       On September 9, 2013, Appellant filed post-sentence motions raising:

(1) a sufficiency of the evidence claim; (2) a weight of the evidence claim;

and (3) a discretionary aspects of sentence claim.      The trial court denied

Appellant’s post-sentence motions on January 3, 2014.                Thereafter,

Appellant filed a timely notice of appeal and complied with the trial court’s

order to file a statement of matters complained of on appeal.

       Appellant raises the following issues for our review:

       I. Did the Commonwealth fail to present sufficient evidence at
       trial to prove beyond a reasonable doubt that the Appellant
       possessed 0.72 tenths of a gram of Heroin with the intent to
       distribute?

       II. Did the jury give too great a weight to the testimony of
       Detective Ryan Mong regarding his opinion that the 0.72 tenths
       of a gram of Heroin was possessed with the intent to distribute?
____________________________________________


4
  By Order dated March 13, 2014, the trial court forwarded the trial court file
to this Court, noting that its January 3, 2014 opinion addressed Appellant’s
matters complained of on appeal. Accordingly, we will treat the trial court’s
January 3, 2014 opinion as its Pa.R.A.P. 1925(a) opinion.




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J-S60035-14


      III. Did the Sentencing Court err in sentencing Appellant to the
      top of the standard range for his minimum sentence at Action
      Number CP-38-CR-175-2013 and running that sentence
      consecutively to the sentence imposed at Action Number CP-38-
      CR-176-2013 when the Appellant had a prior record score of
      zero and only two (2) misdemeanor juvenile adjudications, and
      did the Sentencing Court consider improper facts when molding
      Appellant’s sentence?

Appellant’s Brief, p. 4.

      Appellant first argues that the Commonwealth failed to prove that he

committed the crime of PWID.            See Appellant’s Brief, pp. 10-12.

Specifically, Appellant claims the Commonwealth failed to prove he had the

intent to distribute the heroin. Id. He is incorrect.

      When examining a challenge to the sufficiency of evidence, this Court’s

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
      defendant’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
      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
      [trier] 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.


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Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal

denied, 32 A.3d 1275 (Pa.2011).

     The Crimes Code defines PWID 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). “[I]t is well settled that intent to deliver may be

inferred from an examination of the facts and circumstances surrounding the

case.”   Commonwealth v. Daniels, 999 A.2d 590, 595 (Pa.Super.2010).

“When determining whether a defendant had the requisite intent to deliver,

relevant factors for consideration are the manner in which the controlled

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

drug paraphernalia, and large sums of cash.”            Commonwealth v.

Carpenter, 955 A.2d 411, 414 (Pa.Super.2008) (internal quotation marks

and citation omitted).     “Expert opinion testimony is also admissible

concerning whether the facts surrounding the possession of controlled

substances are consistent with an intent to deliver rather than with an intent

to possess it for personal use.” Id. (internal quotation marks and citation

omitted).


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     Here, the trial court explained its rejection of Appellant’s sufficiency of

the evidence claim as follows:

           [Appellant] was charged with three counts.       Count 1
     charged [Appellant] with [p]ossessing [h]eroin with the [i]ntent
     to [d]eliver it. Count 2 charged [Appellant] with [p]ossessing
     [h]eroin.       Count 3 charged [p]ossession of [d]rug
     [p]araphernalia. More than enough evidence was presented to
     support each count.

           Synthetic substances and rolling paper[s] were found on
     [Appellant’s] person when he was arrested.             [Appellant]
     admitted to police that they would find substances on his person
     that would eventually lead to criminal charges.            Within
     [Appellant’s] apartment, police found a large amount of heroin.
     This heroin was packaged in bags via which it could be easily
     delivered to other individuals. Additional bags were found in
     [Appellant’s] apartment that could be used to package still more
     heroin. [Appellant] admitted to police that all of the heroin and
     drug paraphernalia in his apartment belonged to him.

           There are two possible reasons why [Appellant] possessed
     such a large amount of heroin and drug paraphernalia. The first
     explanation is that [Appellant] was a heroin addict. The second
     was that [Appellant] was selling heroin to others. To establish
     guilt on Count 1, the Commonwealth needed to convince the
     jury that the second explanation – that [Appellant] was selling
     heroin to others – was accurate.         To do this, significant
     testimony was presented at trial with respect to the question of
     whether [Appellant] was in fact a heroin addict. Det. Mong
     described the appearance and behavior of most heroin addicts.
     More important, heroin is normally ingested through injection.
     No needles or other injection devices were found on [Appellant’s]
     person or his apartment. If the above were not enough, the
     Commonwealth also presented evidence from a prison intake
     clerk that [Appellant] effectively denied being a heroin addict
     when he was admitted into the Lebanon County Prison.

           Based upon all of the evidence presented, the jury could
     have reasonably concluded that [Appellant] was not a heroin
     addict and that he possessed 17 bags of heroin with the intent to
     deliver those bags to other people.



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J-S60035-14



1925(a) Opinion, pp. 8-9.

      Viewed in the light most favorable to the Commonwealth as verdict

winner, the trial court properly concluded that the evidence was sufficient to

convict Appellant of PWID.

      Appellant also claims the trial court erred in denying his motion for a

new trial based on a weight of the evidence claim. See Appellant’s Brief, p.

13.   Specifically, Appellant claims the jury placed too much weight on

Detective Mong’s testimony because Detective Mong has always testified as

an expert for the Commonwealth. Id. This claim lacks merit.

      This Court’s review of weight of the evidence claims is governed by the

following standard:

      A motion for new trial on the grounds that the verdict is contrary
      to the weight of the evidence, concedes that there is sufficient
      evidence to sustain the verdict. Thus, the trial court is under no
      obligation to view the evidence in the light most favorable to the
      verdict winner. An allegation that the verdict is against the
      weight of the evidence is addressed to the discretion of the trial
      court. A new trial should not be granted because of a mere
      conflict in the testimony or because the judge on the same facts
      would have arrived at a different conclusion. A trial judge must
      do more than reassess the credibility of the witnesses and allege
      that he would not have assented to the verdict if he were a
      juror. Trial judges, in reviewing a claim that the verdict is
      against the weight of the evidence do not sit as the thirteenth
      juror. Rather, the role of the trial judge is to determine that
      notwithstanding all the facts, certain facts are so clearly of
      greater weight that to ignore them or to give them equal weight
      with all the facts is to deny justice.

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa.2000) (internal

citations, quotations, and footnote omitted).


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       Stated differently, a court may award a new trial because the verdict is

against the weight of the evidence only when the verdict is so contrary to

the evidence as to shock one’s sense of justice,5 “such that right must be

given another opportunity to prevail.” Commonwealth v. Goodwine, 692

A.2d 233, 236 (Pa.Super.1997).            Moreover, appellate review of a weight

claim consists of a review of the trial court’s exercise of discretion, not a

review of the underlying question of whether the verdict is against the

weight of the evidence.        Widmer, 744 A.2d at 753.      When reviewing the

trial court’s determination, this Court gives the gravest deference to the

findings of the court below. We review the court’s actions for an abuse of

discretion. Id.

       Simply stated, the jury’s verdict in this matter implicitly illustrates that

the jury found credible Detective Mong’s testimony that Appellant possessed

the heroin for delivery as opposed to personal consumption.           The verdict

also demonstrates that the jury found other evidence of guilt significant,
____________________________________________


5
 This Court has explained the notion of “shocking to one’s sense of justice”
as follows:

       When the figure of Justice totters on her pedestal, or when the
       jury's verdict, at the time of its rendition, causes the trial judge
       to lose his breath, temporarily, and causes him to almost fall
       from the bench, then it is truly shocking to the judicial
       conscience.

Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa.Super.2004)
(internal citations and quotations omitted).




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J-S60035-14



including the amount of heroin recovered and the packaging supplies seized.

The trial court agreed with the jury’s assessment in denying Appellant’s

post-sentence motion for a new trial based on the weight of the evidence.

See Trial Court Opinion, pp. 8-9.       Nothing about the verdict or the trial

court’s reasoning shocks the conscience. Appellant’s weight of the evidence

claim fails.

      Finally, Appellant claims the trial court erred in sentencing him to the

top of the standard range of the sentencing guidelines and by running the

sentence consecutive to Appellant’s sentence in another matter.                 See

Appellant’s Brief, pp. 14-15.

      These    claims   raise   challenges     to   the   discretionary   aspects   of

Appellant’s sentence. “Challenges to the discretionary aspects of sentencing

do not entitle a petitioner to review as of right.” Commonwealth v. Allen,

24 A.3d 1058, 1064 (Pa.Super.2011). Before this Court can address such a

discretionary challenge, an appellant must comply with the following

requirements:

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test: (1) whether appellant has filed a timely notice of
      appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was
      properly preserved at sentencing or in a motion to reconsider
      and modify sentence, see Pa.R.Crim.P. [720]; (3) whether
      appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4)
      whether there is a substantial question that the sentence
      appealed from is not appropriate under the Sentencing Code.

Allen, 24 A.3d at 1064.


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        Here, Appellant filed a timely notice of appeal, and preserved his

issues in a motion for reconsideration of sentence. Further, Appellant’s brief

includes a concise statement of the reasons relied upon for allowance of

appeal pursuant to Pa.R.A.P. 2119(f).                 See Appellant’s Brief, p. 9.

Accordingly, we now determine whether Appellant has raised a substantial

question for review and, if so, proceed to a discussion of the merits of the

claim.    Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki, 522 A.2d 17

(Pa.1987).

        In his Pa.R.A.P. 2119(f) statement, Appellant alleges that the trial

court imposed an unreasonable sentence because (1) it decided to run the

sentence consecutive to another sentence6 and (2) it based the sentence

solely on defendant’s lack of remorse at sentencing. See Appellant’s Brief,

p. 9.

        Initially,   we   note   that   Appellant’s   claim   that   his   sentence   is

unreasonable because the trial court decided to run it consecutive to another

sentence imposed does not raise a substantial question for our review. See

Commonwealth v. Marts, 889 A.2d 608, 612 (Pa.Super.2005) (a claim

that the consecutive nature of sentences violates the Sentencing Code fails

to raise a substantial question for review).
____________________________________________


6
  The other matter is Docket No. CP-38-CR-176-2013, an attempted murder
conviction upon which the trial court sentenced Appellant to 20 to 40 years’
incarceration, also on August 28, 2013.




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      As to his second argument, Appellant does not argue that the

sentencing court relied upon any impermissible factors in sentencing, relied

solely on the severity of the crime committed, or sentenced him beyond

statutory limits. Instead, he alleges that the sentencing court focused solely

on his lack of remorse at the sentencing hearing in imposing sentence. Id.

To the extent Appellant’s claim is that the trial court viewed his silence at

sentencing as a lack of remorse and relied solely on that silence in

sentencing, this claim does raise a substantial question for appellate review.

See Commonwealth v. Bowen, 975 A.2d 1120 (Pa.Super.2009). We will

therefore address the       merits of Appellant’s discretionary aspects of

sentencing claim.

            If this Court grants appeal and reviews the sentence, the
      standard of review is well-settled: sentencing is vested in the
      discretion of the trial court, and will not be disturbed absent a
      manifest abuse of that discretion.        An abuse of discretion
      involves a sentence which was manifestly unreasonable, or
      which resulted from partiality, prejudice, bias or ill will. It is
      more than just an error in judgment.

Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa.Super.2006)

(citations omitted).

      Our review of the sentencing transcript reveals that the lower court did

not abuse its discretion.   Instead, the trial court imposed a sentence that

was consistent with the protection of the public, took into account the

gravity of the offense as it related to the impact on the life of the victim and




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J-S60035-14



on the community, and considered the Appellant’s rehabilitative needs, as

required by 42 Pa.C.S. § 9721(b).

       At sentencing, the trial court explained it considered the presentence

investigative report,7 the facts presented at trial, and all the circumstances

surrounding the crime made out to the court. N.T. 8/28/2013, pp. 14-15.

The court then sentenced Appellant to a standard range sentence within the

statutory maximum.        See Commonwealth v. Moury, 992 A.2d 162, 171

(Pa.Super.2010) (“[W]here a sentence is within the standard range of the

guidelines, Pennsylvania law views the sentence as appropriate under the

Sentencing Code.”). We find no abuse of discretion.

       Given the foregoing, Appellant’s claims that the trial court erred in

running his sentence consecutive to another sentence and relied solely on

his lack of remorse in sentencing fail.

       Judgment of sentence affirmed.




____________________________________________


7
  We note that, where a sentencing court had the benefit of a presentence
investigation report, we can assume the sentencing court was aware of
relevant information contained therein and weighed that information along
with any mitigating factors. Commonwealth v. Moury, 992 A.2d 162, 171
(Pa.Super.2010).




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J-S60035-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2014




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