J-S70043-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    MICHAEL MARTINEZ                           :
                                               :
                       Appellant               :      No. 2399 EDA 2017

              Appeal from the Judgment of Sentence April 26, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0008516-2016


BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.:                        FILED FEBRUARY 26, 2019

        Appellant, Michael Martinez,1 appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his bench

trial convictions of possession with the intent to distribute and knowing and

intentional possession.2

        The trial court opinion fully and correctly sets forth the relevant facts

and procedural history of this case. Therefore, we have no reason to restate

them. We amend the opinion to state the court sentenced Appellant on April

26, 2017, and on May 23, 2017, the court expressly deemed Appellant’s post-

sentence motion timely filed nunc pro tunc.

____________________________________________


1   Appellant’s name is also spelled “Micheal” in the record.

2 35 P.S. §§ 780-113(a)(30), and 780-113(a)(16), respectively. The court
imposed no further penalty on the (a)(16) offense.
J-S70043-18


      Appellant raises the following issues for our review:

         WAS NOT THE EVIDENCE INSUFFICIENT AS A MATTER OF
         LAW TO SUSTAIN CONVICTIONS FOR POSSESSION OF A
         CONTROLLED SUBSTANCE WITH THE INTENT TO DELIVER
         AS WELL AS KNOWING AND INTENTIONAL POSSESSION OF
         A CONTROLLED SUBSTANCE, WHERE THE MOST
         REASONABLE INFERENCE FROM THE EVIDENCE IS THAT
         APPELLANT DID NOT POSSESS ANY CONTROLLED
         SUBSTANCE AT ALL?

         DID NOT THE [TRIAL] COURT ERR IN DENYING
         APPELLANT’S POST-SENTENCE MOTION FOR A NEW TRIAL
         WHERE THE VERDICT WAS AGAINST THE WEIGHT OF THE
         EVIDENCE?

(Appellant’s Brief at 4).

      A challenge to the sufficiency of the evidence implicates the following

legal principles:

         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
         [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.


                                     -2-
J-S70043-18


Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005) (quoting

Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super. 2003)).

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

(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)

(internal citations omitted).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Lucretia

Clemons, we conclude Appellant’s issues merit no relief.        The trial court

opinion comprehensively discusses and properly disposes of the question

presented.    (See Trial Court Opinion, filed December 18, 2017, at 4-8)

(finding: (1) evidence was sufficient to convict Appellant of possession with

the intent to distribute and knowing and intentional possession, where

Commonwealth established at trial Appellant’s constructive possession of

narcotics through testimony of three police officers and physical evidence

police seized from Appellant and two buyers on date of transactions; (2) at

trial, Officer Cerebe credibly testified to Appellant’s identification on day of

transactions; Officer Cerebe testified as to her observation of Appellant’s

physical description on day of incident; no record evidence contradicts Officer

Cerebe’s testimony about Appellant’s physical description; although Officer

                                     -3-
J-S70043-18


Cerebe lost sight of Appellant after three transactions for five to six minutes,

Officer Cerebe testified she positively identified Appellant before Officer

Cooper arrested him; verdict was consistent with weight of evidence). The

record supports the court’s decision, and we see no reason to disturb it.

Accordingly, we affirm based on the trial court’s opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/26/19




                                     -4-
                                                                                                     DEC I B 2017
                                                                                                Circulated 01/30/2019 04:35 PM
                                                                                              Office of Judicial Records
)
I                                                                                                Appeafs/Post Trial
,.·
!
,.                                    IN THE COURT OF COMMON PLEAS
                                     FOR THE COUNTY OF PHILADELPHIA
                                          CRIMINAL TRIAL DlVISION


           COMMONWEAL TH                                      COURT OF COMMON PLEAS
                                                              PHILADELPHIA COUNTY
           vs.
       MICHAEL MARTINEZ                                       NO. CP-51-CR-0008516-2016



                                                     OPINION

                                                Lucretia Clemons, J.

                  Defendant Michael Martinez appeals from his judgment of sentence of the Court of

       Common Pleas of Philadelphia entered on April 26, 2017. On appeal, Defendant challenges the

       sufficiency of the evidence supporting his conviction of two crimes: (1) manufacture, delivery,

       or possession with intent to manufacture or deliver a controlled substance          by a person not

       registered (hereinafter "possession with the intent to distribute"); 1 and (2) knowingly and

       intentionally possessing a controlled or counterfeit substance by a person not registered

      {hereinafter "knowing and intentional possession").2 Additionally, Defendant contends that the

       trial court erred and abused its discretion by denying Defendant's Post Sentence Motion Nunc

       Pro Tune requesting a new trial where the verdicts were against the weight of the evidence. For

      the reasons discussed herein, the Superior Court should affirm this Court's findings of fact and

      uphold the Defendant's sentence.3                      r�P-;��:-08�;;2016Comm
                                                                                    v. Ma�inez, Micheal ·
                                                                                Opinion                 I




                                                                    ImI Ill II II II IIIIII I Ill
                                                                  ____ ____J!Q_4596i)_191_         __,,
      1
           35 Pa.C.S. § 780-113(a)(30).
      :i   35 Pa.C.S. § 780-l l 3(a)(l 6).
      3
           The trial court writes this Opinion pursuant to Pennsylvania Rule of Appellate Procedure
      § l 925(a).
        I.      FACTUAL HISTORY4

               At Defendant's bench trial. Police Officer Kathy Cerebe of the Philadelphia Police

        Department testified that, on July 14.2016 at approximately 12:00 pm, she conducted a

        plainclothes surveillance on the 3000 block of N. Water Street in Philadelphia, PA from a

        confidential location. N.T. February 10, 2017 at 15. From a location approximately I 00 feet

        south of the block and while using binoculars, Officer Cerebe observed Michael Martinez

        ("Defendant") on the east side of the block. Id. at 15- 16, 23. Officer Cerebe testified that

        Defendant wore a black t-shirt and jeans, along with sunglasses on the top of his head. Id. at 23.

        Officer Cerebe saw two unknown white males hand Defendant an unknown amount of money in

    exchange for unknown items. Id. at 16. Officer Cerebe radioed the descriptions and directions

    or the two white males to her backup officers, but they were unable to locate them.            Id. About a

    minute after the first transaction, Officer Cerebe observed Steven Graciani walk southbound on

    Water Street from Clearfield Street and approach Defendant. Id. at 16, 29. After a brief

    conversation, Mr. Graciani handed Defendant an unknown amount of money. Id. In return,

    Defendant handed Mr. Graciani unknown items. Id Officer Cerebe relayed Mr. Graciani's

    description and location to backup officers while Mr. Graciani proceeded northbound on Water

    Street. Id. Based on that information, Police Officer Raphael Maldonado stopped Mr. Graciani

    at 200 East Lippincott Street. Id. at 35, 38. Officer Maldonado recovered one clear plastic

    packet with a blue glassine insert stamped with a minion cartoon character from Graciani 's pants

    pocket. 5 Id. at 36. The packet contained a tan powdery substance, which was later confirmed to

    be heroin. Id at 50.



    1
• The Factual Background is taken from the Waiver Trial hearing dated 02/10/2017 (hereinafter N.T. February I 0,
2017).
5
  Recovered narcotics were placed on property receipt 3258592.


                                                         2
        A couple of minutes after Defendant's transaction with Mr. Graciani, Officer Cerebe

observed Thomas Holland engage in a short conversation with Defendant. Id. at 17, 30.

Defendant and Mr. Holland proceeded to walk southbound "maybe a car length or two" farther,

and then Mr. Holland handed Defendant an unknown amount of money in exchange for

unknown items. Id. Following the transaction, Mr. Holland left northbound on Clearfield Street

in a Ford F-150 pick-up truck. Id. at 31, 42. Based on information received from Officer

Cerebe, Police Officer William Tull stopped Mr. Holland approximately at 12: IO pm in the I 00

block of Allegheny Avenue. Id. at 17, 42, 44. Officer Tull arrested Mr. Holland and recovered

one clear plastic packet with a blue glassine insert with a minion stamp and one lime-green

container from the passenger seat. 6 Id. at 42. The packet contained 0.1 l grams of heroin. Id at

50. The green container contained off-white chunks that tested positive for cocaine. Id. at 51.

        Defendant crossed the street onto the west side of Water Street after his transaction with

Mr. Holland was complete. Id. at 17-18. Defendant was out of Officer Cerebe's view for

approximately five to six minutes. Id. at 24. Officer Cerebe left the surveillance location in an

unmarked vehicle. Id. at 18. Once Officer Cerebe located Defendant in front of 3026 Water

Street, she called for backup, relaying Defendant's description and location. Id Officer Cooper

arrested Defendant after Officer Cerebe positively identified Defendant. Officer Cooper

recovered $275.00 from Defendant.7 Id. at 18, 23. No narcotics were recovered from

Defendant' s person. Id at 23.

11.     PROCEDURAL HISTORY

        On July 14, 2016, Defendant Michael Martinez was arrested and charged with possession

with the intent to deliver and knowing and intentional possession. On February l 0, 2017,


6
   Recovered narcotics were placed on property receipt 3258593.
·, Recovered United States currency was placed on property receipt 3258594.


                                                        3
Defendant waived his right to a jury trial, and he was tried before the Honorable Lucretia

Clemons in a bench trial. The trial court convicted Defendant of both charges. On April 2.b,

2017, the trial court sentenced Defendant to twelve to twenty-seven months incarceration at the

State Correctional Institution followed by reporting probation for a maximum of three years. On

May 22, 2017, Defendant filed a Post Sentence Motion Nunc Pro Tune requesting a new trial.

The Post Sentence Motion Nunc Pro Tune was denied on June 21, 2017. On July 21, 2017,

Defendant filed a Notice of Appeal to the Superior Court. On August 9, 2017, Defendant filed a

Statement of Errors Complained of on Appeal.

Ill.      DEFENSE RAlSED STATEMENT OF ERRORS ON APPEAL

          Defendant raises the following issues in his Statement of Errors Complained of on

Appeal:

       I. Whether the trial court erred when it found that there was sufficient evidence to support a

          conviction for the charges of possession with the intent to deliver and knowing and

          intentional possession.

       2. Whether the trial court abused its discretion in denying the Post Sentence Motion Nunc

          Pro Tune for a new trial, because the verdict of guilt was against the weight of the

          evidence.

IV.       DISCUSSION

          A.     Sufficient Evidence Supports Defendant's Convictions.

          On appeal. Defendant contends that the evidence presented at trial was insufficient to

establish beyond a reasonable doubt that he was guilty of: (I) possession with the intent to

deliver and (2) knowing and intentional possession. Defendant's claim lacks merit for the

reasons cited below.




                                                   4
        The standard for determining whether suflicient evidence exists to support a conviction is

well established:

        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. Where the evidence offered to support the verdict is in
        contradiction to the physical facts, in contravention to human experience and the laws of
        nature, then the evidence is insufficient as a matter of law. When reviewing a sufficiency
        claim[,] the court is required to view the evidence 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. Ortiz, 160 A.3d 230, 23JM34 (Super. Ct. Pa. 2017) (citing

Commonwealth v. Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751 (2000) (internal citations

omitted)).

        Two material elements comprise the crime of possession with the intent to deliver: (I) the

defendant possessed a controlled substance, and (2) the defendant intended to deliver the

controlled substance. See Commonwealth v. Roberts, 133 A.Jct 759, 767 (Super. Ct. Pa. 2016)

(citing Commonwealth v. Lee, 956 A.2d 1024, 1028 (Pa. Super. 2008)).

                I.     Defendant Possessed a Controlled Substance.

       Since no drugs were found on Defendant's person, the Commonwealth have to show at

trial that Defendant was in constructive possession of the heroin recovered. The Superior Court

has defined constructive possession as exerting "conscious dominion" over contraband, which

requires having (I) "the power to control the contraband" and (2) "the intent to exercise that

control." Commonwealth v. Roberts, 133 A.3d 759, 768 (Pa. Super. 2016) (citing

Commonwealth v, Brown, 48 A.3d 426, 430 (Pa. Super. 2012)). "Constructive possession is an

inference arising from a set of facts that possession is more likely than not," which can be

demonstrated through the totality of the circumstances. Commonwealth v. Parker, 847 A.2d 745,

750 (Pa. Super. 2004) (internal quotations and citations omitted).



                                                 5
       Defendant's constructive possession of narcotics is easily established in this case: the

Commonwealth's evidence, which included the testimony of Officer Cerebe, Officer Maldonado,

Officer Tull, and the physical evidence seized from Defendant and the two buyers on July 14,

2016. was sufficient to allow a finder of fact to find beyond a reasonable doubt that Defendant

was in possession of a controlled substance. The $275.00 cash that was recovered from

Defendant's arrest combined with the heroin packets found on the two buyers linked Defendant

to the possession of the contraband. N.T. February 10, 2017 at 13, 36, 42. The fact that the

buyers that were observed making separate transactions with Defendant had the same heroin

packets with the same packaging, combined with other circumstantial evidence of intent,

supported an inference that Defendant was connected to the contraband.

               2.     Defendant Intended 10 Deliver a Controlled Substance.

       The court looks to the totality of the circumstances surrounding an alleged drug

possession in order to determine whether the defendant possessed the requisite intent to deliver

it. Commonwealth v. Coleman, 130 A.Jd 3 8, 4 I (Super. Ct. Pa. 20 I 5). Commonly considered

factors include the quantity of the controlled substance in the defendant's possession, the

packaging of the substance, the defendant's behavior, the absence of drug paraphernalia for

personal use or presence of drug sale paraphernalia, and the amount of cash in the defendant's

possession. Commonwealth v. Roberts, 133 A.3d 759, 768 (Super. Ct. 2016) (citing

Commonwealth v. Ratsamy, 934 A.2d 1233, 1237�38 (Pa. 2007)).

       After carefully examining all of the circumstances in the present case, this Court found

that the Commonwealth's evidence was clearly sufficient to conclude that Defendant intended to

deliver a controlled substance. Evidence included the eyewitness observations of Officer

Cercbe, who demonstrated significant experience in conducting surveillances involving narcotic




                                                 6
sales in Philadelphia. Officer Cerebe testified that she had worked in the Narcotics Bureau for

approximately twenty-three years. and had been in the Narcotics Strike Force for approximately

five years. N.T. February 10, 2017 at 12. Officer Cerebe had coordinated "at least 100 or more'"

surveillances. Id at 14. Officer Cerebe chose the surveillance location where she observed

Defendant's drug transaction because she knew it to be a high drug sale area based on prior

invcsrignticns and arrests. Id. at 15, 42. Officer Cerebe also had a clear view of Defendant and

the buyers, because she utilized binoculars from a distance of approximately 100 feet. Id. at 15,

27. Even though Office Cerebe lost sight of Defendant for five to six minutes after Defendant

was finished with his last transaction, Officer Cerebe testified that she was in constant radio

contact with backup officers during the entire surveillance, where she was relaying descriptions

and locations of Defendant and each of the four purchasers. Id at 24, 17. This uninterrupted

radio communication kept the officers informed of the current situation and any changes in the

whereabouts of Defendant and the buyers. Moreover, Officer Cerebe testified that she positively

identified Defendant when he appeared into her view again. Id. at 25. According to Officer

Ccrcbc, there was nobody else on the street that remotely resembled Defendant. Id. This court

can reasonably rely on the credible testimony of Officer Cerebe, who had a great deal of

experience and training in conducting surveillances and recognizing narcotics transactions.

       Furthermore, Defendant foiled to raise reasonable doubt regarding the convictions that he

sustained. AlthoughDefendant's possession of the $275.00 that was recovered from his arrest,

without more, does not prove that he was involved in drug sales, Officer Cerebe's surveillance

testimony links the drugs found on the detained buyers to Defendant. Id. at 23. It can be

reasonably inferred that Defendant supplied the heroin packets to both arrested purchasers,

Steven Graciani and Thomas Holland, because both purchasers possessed the same type of




                                                  7
narcotics with identical packaging. These facts support a permissible inference that Defendant

was not merely having conversations in the surveillance area, but was involved in the illegal

exchange of heroin for cash. Considering all the evidence presented before this court, the verdict

does not contradict the physical and circumstantial facts. Viewing the evidence in the light most

favorable to the Commonwealth, there is sufficient evidence to support Defendant's conviction

or possession with the intent to deliver heroin.

               3.      Sufficient Evidence Existed to Convict Defendant of Knowing and,
                       Intentional Possession.

       Defendant also asserts that insufficient evidence supported his conviction for knowing

and intentional possession. Simple possession is a lesser-included offense of possession with the

intent to distribute. See Commonwealth v. Roberts, 133 A.3d 759, 769 (Pa. Super. Ct. 2016).

Therefore, by showing that the trial court had sufficient evidence to find Defendant guilty of

possession with the intent to deliver. the Court need not enter a separate analysis to find that

there was sufficient evidence of his knowing or intentional possession.

       8.      The Trial Court's Verdict and Denial of Defendant's Post-Sentence Motion
               Were Not Against the Weight of the Evidence.
       Mr. Martinez's final contention that the verdicts in this trial were against the weight of

the evidence must be rejected. The Superior Court applies a strict standard when determining

whether a verdict is against the weight of the evidence:

       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, [it) may only reverse
       the lower court's verdict if it is so contrary to the evidence as to shock one's sense of
       justice.

Commonwealth v. Small, 741 A.2d 666, 672 (Pa. 1999) (internal citations omitted). A verdict

must meet a very high bar to "shock one's sense of justice": "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


                                                   8
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 omitted). Defendant's appeal cannot meet this high bar.

          In Defendant's Post Sentence Motion Nunc Pro Tune, Defendant insists that the

testimony of the Commonwealth's witnesses do not support a finding of guilt. To support this

contention, Defendant states that the Commonwealth failed to meet its burden in proving

Defendant guilty beyond a reasonable doubt because: ( 1) the physical description of the alleged

seller does not match what Defendant was wearing when arrested; (2) the alleged seller left the

area of surveillance before he was arrested; and (3) Defendant was arrested with no narcotics

found on his person.8 This court disagrees with Defendant for the reasons cited below.

          Only the Commonwealth offered eyewitness testimony to support its version of what

occurred on July 14, 2016 on 3000 N. Water Street. Therefore, this case turns on the credibility

of the wi messes presented by the officers. First, Defendant's challenge to Officer Cerebe' s

physical description of the seller is unfounded. Officer Cerebe testified that she observed that

Defendant wore u black t-shirt, blue jeans, and sunglasses on top of his head. N.T. February 10,

20 I 7 at 23. No record evidence contradicts Officer Cerebe' s testimony regarding Defendant's

physical description. Defendant's Post Sentence Motion for a new trial even avers that

Defendant was wearing a black t-shirt and blue jeans. Therefore, Defendant's argument that the

physical description of the alleged seller does not match what Defendant was wearing when

arrested is unsubstantiated by the record.

           Second, Defendant contends that there is no evidence to connect Defendant to the buyers

and the observed transactions, because the alleged seller had left 3000 North Water Street before



M   Defendant's Post Sentence Motion Nunc Pro Tune filed on May 23, 2017.


                                                        9
Defendant was arrested. The fact that the seller was seen leaving the area of surveillance before

his arrest does not preclude Defendant as the seller in the transactions observed by Officer

Ccrebe. Although Officer Cerebe lost sight of Defendant after the three transactions for five to

six minutes, Officer Cerebe testified that she witnessed Officer Cooper stop and arrest

Defendant. Id. at 19. Officer Cerebe positively identified Defendant before Officer Cooper

arrested him, and also answered "no" when she was asked whether there was anybody else on

the street that remotely resembled Defendant. Id. at 18, 25. Given Officer Cerebe's credible

idcnti fication of Defendant as the seller that she observed, Defendant's filings offer no reason to

shill the weight   or the evidence.
       Third. this Court found the testimony of Officer Cerebe to be wholly credible. The

evidence presented in Officer Cerebe's testimony was abundant, thorough, and compelling.

While Defendant contests the weight of the evidence because the narcotics were not found on his

person, this Court has determined that based upon the credible testimony of Officer Cerebe,

Defendant constructively possessed the heroin found on the arrested buyers. Defendant offers no

reason why this inference of constructive possession should shock the judicial conscience.

       For these reasons, Defendant's arguments that his convictions were against the weight of

the evidence must fail.

IV.    CONCLUSION

       Based upon the foregoing reasons, the judgment of sentence should be affirmed.

                                                      BY THE COURT:




                                                      �
                                                      Dated: December 18, 20 l 7




                                                 10
Commonwealth v. Michael Martinez
CP-5J-CR-0008516-2016

                                    PROOF OF SERVICE

I hereby certify that I am this day caused to be served the foregoing this persorus), and in the
manner indicated below:



A uorney for the Commonwealth:
                                     Chris Taylor, Esquire
                                     District Attorney's Office
                                     Three South Penn Square
                                     Philadelphia, PA 19107

Type of Service:          ) Personal (X) Regular mail ( ) CJC mailbox ( ) Email

Attorney for Defendant:
                                     Matt Nelson, Esquire
                                     1441 Sansom Street
                                     Philadelphia, PA 19102

Type of Service:      (   ) Personal (X) Regular mail ( ) CJC mailbox ( ) Email



D/\TED:                   12/1�/IJ
                            '
                                                 uctu·�
                                            Su i Vuu, Esquire
                                )



                                            b w Clerk to Hon. Lucretia Clemons




                                               1I
