J. S62021/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                                            :
                                            :
              v.                            :
                                            :
ANGEL NOEL MARTINEZ                         :
                                            :
                      APPELLANT             :    No. 51 MDA 2016

            Appeal from the Judgment of Sentence December 4, 2015
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0001104-2015

BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY DUBOW, J.:                        FILED SEPTEMBER 26, 2016

         Appellant, Angel Noel Martinez, appeals from the December 4, 2015

Judgment of Sentence entered in the Lancaster County Court of Common

Pleas.     After careful review, we affirm on the basis of the trial court’s

Opinion, which found that an eyewitness identification and corroborating

testimony from two additional witnesses was sufficient evidence to support

the jury’s verdict.

         The trial court summarized the relevant factual and procedural history

as follows.

         On July 18, 2014, the Lancaster City Police Selective
         Enforcement Unit (SEU) conducted an undercover drug operation
         in Conestoga Pines Park using undercover Officer Richard
         Mendez. At approximately 8:15 p.m., Officer Mendez arranged
         to meet an individual by the name of “Bells” at the Park for
         purposes of buying heroin.    Officer Mendez had purchased
J. S62021/16


     narcotics from “Bells” at previous times and locations throughout
     the City.

     Officer Mendez handed “Bells” $60.00 in pre-documented buy
     money. “Bells” immediately left Officer Mendez’s vehicle and
     approached another group of subjects that were at a vehicle
     behind Officer Mendez’s.       Officer Mendez was able to
     continuously observe “Bells” and the other vehicle from his side
     view and rear view mirrors, while also turning around in his
     vehicle.  He observed “Bells” approach Appellant and hand
     Appellant the money that he had just given “Bells”. Appellant
     was seen going into the trunk of the car, reaching inside a
     backpack, and pulling out a small item.

     “Bells” immediately returned to the driver’s side of Officer
     Mendez’s vehicle and handed the small item to Officer Mendez,
     which contained ten glassine bags, each containing a tan
     powder, which field tested positive for heroin. After some small
     talk with “Bells”, Officer Mendez signaled the surveillance officers
     that he had a "good deal" and left the area. As a result of
     subsequent police investigation, “Bells” was identified as
     Quamell Waiters, and the other black male as Appellant.

     As a result of this criminal activity, a criminal complaint was filed
     and an arrest warrant issued for Appellant on November 17,
     2014. Appellant was ultimately arrested on December 20, 2014,
     and charged with possession with intent to deliver a controlled
     substance (PWID), 35 P.S. § 780-113(a)(30), and criminal
     conspiracy, 18 Pa. C.S.A. § 903(c).

     On September 23, 2015, Appellant's case proceeded to a jury
     trial. On September 24, 2015, the jury found Appellant guilty of
     criminal conspiracy and PWID. A pre-sentence investigation was
     ordered and sentence[ing] was deferred until completion of the
     pre- sentence investigation report.

     On December 4, 2015, Appellant received concurrent sentences
     of 22 months’ to 6 years’ incarceration on the charges of PWID
     and criminal conspiracy, plus fines and costs. Appellant was
     eligible for a RRRI sentence of 16-1/2 months’ incarceration.

     On December 8, 2015, Appellant filed a motion to modify
     sentence…. This post sentence motion was denied by Order of
     Court on December 9, 2015.



                                     -2-
J. S62021/16


      Appellant filed a direct appeal on January 7, 2016, with the
      Superior Court of Pennsylvania from the judgment of sentence
      imposed on December 4, 2015. Pursuant to this Court's
      directive, Appellant furnished a concise statement of errors on
      appeal[.]

Trial Court Opinion, filed 2/23/16, at 1-3.

      On appeal, Appellant raises a single issue:

      Was the evidence presented by the Commonwealth insufficient
      to sustain [Appellant’s] convictions for delivery of heroin and
      criminal conspiracy to deliver heroin, where Sergeant Mendez did
      not have sufficient opportunity to observe and identify the
      suspect who delivered heroin to Mr. Waiters from over thirty feet
      away, and his identification was based upon suggestive
      photographs?

Appellant’s Brief at 4.1

       In reviewing the sufficiency of the evidence, our standard of review is

as follows:

         The standard of review for a challenge to the sufficiency of
         the evidence is to determine whether, when viewed in a
         light most favorable to the verdict winner, the evidence at
         trial and all reasonable inferences therefrom is sufficient
         for the trier of fact to find that each element of the crimes
         charged is established beyond a reasonable doubt. The
         Commonwealth may sustain its burden of proving every
         element beyond a reasonable doubt by means of wholly
         circumstantial evidence.




1
  Appellant purports to challenge only the sufficiency of the identification
evidence against him. He does not aver that the trial court erred in
admitting Officer Mendez’s identification testimony. To the extent that
Appellant challenges the weight of the evidence in his Brief to this Court,
Appellant waived such a claim by failing to raise it in his Pa.R.A.P. 1925(b)
Statement. See Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa.
2005).



                                     -3-
J. S62021/16


           The facts and circumstances established by the
           Commonwealth need not preclude every possibility of
           innocence. Any doubt raised as to the accused's guilt is to
           be resolved by the fact-finder. As an appellate court, we
           do not assess credibility nor do we assign weight to any of
           the testimony of record. Therefore, we will not disturb the
           verdict 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.

Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014)

(citations and quotations omitted).

       Specifically regarding the issue of identity, our Supreme Court has

stated that:

       Proof beyond a reasonable doubt of the identity of the accused
       as the person who committed the crime is essential to a
       conviction. The evidence of identification, however, [need not]
       be positive and certain in order to convict, although any
       indefiniteness and uncertainty in the identification testimony
       goes to its weight. Direct evidence of identity is, of course, not
       necessary and a defendant may be convicted solely on
       circumstantial evidence.

Commonwealth v. Hickman, 309 A.2d 564, 566 (Pa. 1973) (citations

omitted).

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

applicable law, and the comprehensive and well-reasoned opinion of the trial

court, we conclude that there is no merit to Appellant’s claim. Accordingly,

we affirm on the basis of the trial court’s opinion, which (i) notes that

“Officer Mendez testified unequivocally” at trial and was “100 percent sure”

of   his   identification   of   Appellant;   and   (ii)   catalogs   the   substantial




                                         -4-
J. S62021/16


corroborating and circumstantial evidence supporting Officer Mendez’s

identification of Appellant. See Trial Court Opinion, at 3-8.

      The parties are instructed to attach a copy of the trial court’s Opinion,

dated February 23, 2016, to all future filings.

      Judgment of Sentence affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/26/2016




                                     -5-
                                                                             Circulated 09/01/2016 01:37 PM




     IN THE COURT OF COMMON PLEAS OF LANCASTER                COUNTY, PENNSYLVANIA
                               CRIMINAL


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BY:     ASHWORTH, J., FEBRUARY 23, 2016                                          ~       ""

        Angel Noel Martinez has filed a direct appeal to the Superior Court of

Pennsylvania from the judgment of sentence imposed on December 4, 2015, as

finalized by the denial of Appellant's post sentence motion on December 9, 2015. This

Opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate

Procedure, and for the following reasons, this Court requests that this appeal be

dismissed.


I.       Background


        The relevant facts and procedural history may be summarized as follows. On

July 18, 2014, the Lancaster City Police Selective Enforcement Unit (SEU) conducted

an undercover drug operation in Conestoga Pines Park using undercover Officer

Richard Mendez. (Notes of Testimony, Trial (N.T.) at 62-65.) At approximately 8:15

p. m., Officer Mendez arranged to meet an individual by the name of "Bells" at the Park

for purposes of buying heroin. (Id. at 66.) Officer Mendez had purchased narcotics

from "Bells" at previous times and locations throughout the City. (Id. at 69.)




                                        APPENDIX B
         Officer Mendez handed "Bells" $60.00 in pre-documented          -buy money.   (N.T. at

69.)    "Bells" immediately   left Officer Mendez's vehicle and approached another group of

subjects that were at a vehicle behind Officer Mendez's.       (Id. at 70.) Officer Mendez

was able to continuously observe "Bells" and the other vehicle from his side view and

rear view mirrors, while also turning around in his vehicle.     (Id. at 70-71.)   He observed

"Bells" approach Appellant and hand Appellant the money that he had just given "Bells".

(Id. at 71.)   Appellant was seen going into the trunk of the car, reaching inside a

backpack, and pulling out a small item.      (Id. at 71-72.)

         "Bells" immediately returned to the driver's side of Officer Mendez's vehicle and

handed the small item to Officer Mendez, which contained ten glassine bags, each

containing a tan powder, which field tested positive for heroin. (N.T. at 72, 124-25,

136.)   After some small talk with   'Bells", Officer Mendez signaled the surveillance

officers that he had a "good deal" and left the area. (Id. at 73.) As a result of

subsequent police investigation, "Bells" was identified as Ouamell Waiters, and the

other black male as Appellant. (Id. at 103-04.)

         As a result of this criminal activity, a criminal complaint was filed and an arrest

warrant issued for Appellant on November 17, 2014. Appellant was ultimately arrested

on December 20, 2014, and charged with possession with intent to deliver a controlled

substance (PWID), 35 P.S. § 780-113(a)(30),.and criminal conspiracy, 18 Pa. C.S.A.

§ 903(c).

         On September 23, 2015, Appellant's case proceeded to a jury trial. On

September 24, 2015, the jury found Appellant guilty of criminal conspiracy and PWID.



                                               2
A pre-sentence     investigation was ordered and sentence was deferred until completion

 of the pre-sentence   investigation report.

         On December 4, 2015, Appellant received concurrent sentences of 22 months to

6 years' incarceration on the charges of PWID and criminal conspiracy, plus fines and

costs. Appellant was eligible for a RRRI sentence of 16-1/2 months' incarceration.

         On December 8, 2015, Appellant filed a motion to modify sentence based on the

following grounds: (1) the sentence was "unreasonable and excessive and

represent[ed] an abuse of discretion"; (2) the court ''focused on the protection of the

public and the advent of new criminal charges occurring after [Appellant's] conviction on

the above-listed Docket"; and (3) the court "failed to consider {Appellant's] work history,

volunteerism, and family obligations in fashioning the sentence." (See Motion to Modify

at fflJ 6, 7, 10.) This post sentence motion was denied by Order of Court on December

9, 2015.

         Appellant filed a direct appeal on January 7, 2016, with the Superior Court of

Pennsylvania from the judgment of sentence imposed on December 4, 2015. Pursuant

to this Court's directive, Appellant furnished a concise statement of errors on appeal

which raises the following issue: whether the evidence was sufficient to sustain

Appellant's convictions for delivery of heroin and criminal conspiracy to deliver heroin.


II.      Discussion


       Appellant's sole issue on appeal is that the evidence presented by the

Commonwealth was insufficient to sustain his convictions. Specifically, Appellant

argues

                                               3
       Officer Mendez did not have sufficient opportunity to observe the person
       who delivered heroin to Mr. Waiters over 30 feet away, mostly through
       the rear and side view mirror of his vehicle, in order to identify him.
       Furthermore, Officer Mendez's identification of [Appellant] was based
       upon suggestive photographs.

(Statement of Errors at   ,r 1.)
       In evaluating an insufficiency of the evidence claim, a reviewing court must

determine whether, when reviewing the entire trial record and all of the evidence in the

light most favorable to the Commonwealth as verdict winner, together with all

reasonable inferences therefrom, the trier of fact could have found that each element of

the offense charged was supported by the evidence and inferences sufficient in law to

prove guilt beyond a reasonable doubt. Commonwealth v. Vandivner, 599 Pa. 617,

627, 962 A.2d 1170, 1176 (2009); Commonwealth v. Micking, 17 A.3d 924, 925-26

(Pa. Super. 2011). In applying this test, the appellate court may not weigh the evidence

and substitute its judgment for the fact-finder, Commonwealth v. Taylor, 831 A.2d

661, 663 (Pa. Super. 2003). "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." Id.

Moreover, "[t]he Commonwealth may sustain its burden by proving.the crime's

elements with evidence which is entirely circumstantial and the trier of fact, who

determines credibility of witnesses and the weight to give the evidence produced, is free

to believe all, part, or none of the evidence." Commonwealth v. Riley, 811 A.2d 610,

614 (Pa. Super. 2002) (quoting Commonwealth v. Brown, 701 A.2d 252, 254 (Pa.

Super. 1997)).



                                            4
             In order to convict a defendant of conspiracy, the trier of fact must find that: (1)

the defendant intended to commit or aid in the commission             of the criminal act; (2) the

    defendant entered into an agreement with another person or persons to engage in the

    crime;   and (3) the defendant or one or more of the other co-conspirators committed an

overt act in furtherance of the agreed upon crime. Commonwealth v. Smith, 604 Pa.                          . ,. .. .

126, 1421 985 A.2d 886, 895 (2009) (quoting Commonwealth v. Montalvo, 598                    Pa.     r,   ~ ~' .•.



263, 274-75, 956 A.2d 926, 932 (2008)); see also 18 Pa. C.S.A. § 903. A criminal                          .•,

conspiracy may be inferred where it is demonstrated that the relation, conduct, or

circumstances of the parties, and the overt acts of the co-conspirators sufficiently prove

the formation of a criminal confederation. Commonwealth v. Murphy, 795 A.2d 1025,

1037-38 (Pa. Super. 2002).

             The criminal act at issue in the instant matter is delivery of a controlled

substance. This offense is defined by the legislature as:

             the ... delivery, or possession with Intent to ... deliver, a controlled
             substance by a person not registerect under [The Controlled
             Substance, Drug, Device and Cosmetic 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); Commonwealth v. Murphy, 577 Pa. 275, 284, 844 A.2d·

1228, 1233 (2004). The term "delivery," as used in the above-quoted section, is

defined by The Drug Act as "the actual, constructive, or attempted transfer from one

person to another of a controlled substance .... " 35 P.S. § 780-102; Murphy, 577 Pa.
'
at 284-85, 844 A.2d at 1233-34. A defendant "actually transfers" drugs whenever he

physically conveys drugs to another person. Murphy, 577 Pa. at 285, 844 A.2d at 1234

                                                   5
(citing Black's Law Dictionary 1504 (7'ti ed. 1999)). A defendant "constructively
                                                                                              ..     ! .··
transfers'' drugs when he directs another person to convey drugs under his control to a

third person or entity. Id. (citing Black's Law Dictionary 1503). The evidence offered at

trial proved beyond a reasonable doubt that Appellant constructively transferred, or
                                                                                                             . t,
aided in the transfer of a controlled substance to another person, and further                               .· .
                                                                                                             .
                                                                                                             r'. .

participated in a conspiracy to deliver drugs.                                                  . . ·... ·: .. ..
                                                                                              : .. :
       The Commonwealth's evidence at trial to support the conspiracy and drug

delivery charges included the testimony of Officer Mendez, and the surveillance of

Appellant by Detective Whiteford and Officer Nagy. This evidence, when considered in

its entirety, clearly presented sufficient evidence from which the [ury'could conclude that

Waiters and Appellant' engaged in a controlled substance delivery for which they were

charged.

       Officer Mendez testified unequivocally that."there was no doubt that it was

{Appellant]" who constructively delivered heroin to him through Waiters. (N.T. at 86.)

He reiterated that he was "100 percent sure" that Appellant was "the gentleman that

delivered [the heroin] to Bells" and then to him. (Id. at 87.) Yet. Appellant contends

that "Officer Mendez did not have sufficient opportunity to observe the person who

delivered heroin to Mr. Waiters over 30 feet away" (Id. at 79-80), and that "[his]

identification of [Appellant] was based upon suggestive photographs." (Statement of

Errors at ,I 1.) Were Officer Mendez's testimony the only evidence implicating

Appellant, these arguments would be more persuasive.

       In fact, Officer Mendez's testimony was corroborated by the testimony of

Detective Robert Whiteford and Officer Jason Hagy. Detective Whiteford was working

                                             6
secondary surveillance with the SEU on July 18, 2014.           (N.T. at 91.)     After being

informed of an undercover "buy-walk". drug deal in Conestoga Pines Park, he went

ahead of Officer Mendez to set up a surveillance position.         (Id.) Detective Whiteford

                                                                                                                     . ~·.
observed Officer Mendez enter the Park and park his vehicle near a black sedan.                  (Id.

at 94.)     He observed an individual, identified as "Bells", enter the lot, approach Officer

Mendez, then walk towards the black sedan and the group of individuals standing there.
                                                                                                        I      l          ,'•'

                                                                                                              .....
(Id. at 94-96.)      "Bells" had a conversation with a "black male, light to medium                     ...        ·. \    ......
                                                                                                               ·•',

complexlon, wearing a white T-shirt, blue jean shorts, and a red and white baseball

cap."     (Id. at 96.)   This individual appeared to reach inside the black sedan and pop the

trunk.    (Id.)   Thereafter,   the two men walked to the rear of the vehicle and the man with

"Bells" reached into the trunk and pulled out a small item which he handed to "Bells".

(Id. at 96-97.)     "Bells" then walked to Officer Mendez's vehicle.    (Id.    at 97.)   Soon

thereafter Detective Whiteford was advised that a "good deal" had occurred. (Id.)

While exiting the Park, Detective Whiteford obtained the registration plate for the black

sedan. (Id.)

          Later that same evening, "Bells" was observed by Detective Whiteford in another

part of the City. (N.T. at 98.) He notified the other officers working the detail, and

"Bells" was stopped and identified as Quamell Waiters. (Id.)

          Detective Whiteford took further efforts to identify the other individual at the car

with Waiters. {N. T. at 98.) A check of the registration plate revealed a male owner by

the name of Carlif Green. (Id. at 99.) Detective Whiteford did a check on that name

through a database in social media and came up with multiple photographs. (Id.) From

a photograph apparently taken during a pool party at the Conestoga Pines Pool on July

                                                  7
 18, 2014, from 5:00 to 9:00 p.m .. Detective Whiteford and Officer Mendez were able to                   . .... .

positively identify Appellant in the exact clothing he was described as wearing by both                    ·~             .

officers.1   (Id. at 101-05; Commonwealth Exhibit Nos. 4 & 5.)

        Officer Hagy was the primary surveillance officer on July 18, 2014. (N.T. at 116-               . , ..   · .. '
                                                                                                        :

 17.) Although he was not able to visually see the drug transaction in Conestoga Pines               ; ; .. ···1
Park, he monitored Officer Mendez's conversations with "Bells" by wire. (Id. at 117,                  . ... . ..              I




119-20.) Following the "buy-walk" drug deal, Officer Hagy received the following

description of the suspect from Officer Mendez, which he noted in the surveillance log:

"black male, light to medium complexion, white shirt, blue shorts, glasses, beard, red·

and white hat." (Id. at 122; Commonwealth Exhibit No. 6.) This description was

consistent with Detective Whiteford's observation.

        Based upon the eye-witness testimony of Officer Mendez, and the corroborating

testimony of Detective Whiteford and Officer Hagy, the jury could have found that each

element of the offenses charged was supported by the evidence and inferences

sufficient in law to prove guilt beyond a reasonable doubt.


Ill.    Conclusion


        For the reasons set forth above, Angel Noel Martinez's appeal should be

dismissed and his judgment of sentence affirmed.

        Accordingly, I enter the following:


         'Officer Mendez gave the following description to Officer Nagy of the individual Involved
 in the drug buy with "Bells": "light- to medium-complected black male wearing blue shorts, white
T-shirt, glasses, and ... a white and red hat." (N.T. at 73.) Detective Whiteford described the
man with "Bells" as a "black male, light to medium complexion, wearing a white T-shirt, blue
jean shorts, and a red and white baseball cap." (Id. at 96.)
                                                a
  IN THE COURT OF COMMON PLEAS OF LANCASTER                                 COUNTY, PENNSYLVANIA                         . .. .
                            CRIMINAL                                           .


. COMMONWEALTH                      OF PENNSYLVANIA                                                                    ·· . ·,

                                    v.                                   No. 1104-2015

                    ANGEL NOEL MARTINEZ


                                                             ORDER


              AND NOW, this 23rd day of February, 2016, the Court submits this Opinion

pursuant to Rule 1925(a} of the Pennsylvania Rul~s of Appellate Procedure.
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Copies to:                  Susan E. Moyer, Assistant District Attorney
                            MaryJean Glick, Senior Assistant Public Defender
