J-S41042-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    TOMMY TIBURCIO                             :
                                               :
                      Appellant                :        No. 1816 MDA 2016

          Appeal from the Judgment of Sentence September 29, 2016
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0001319-2016

BEFORE:       GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                                 FILED JUNE 26, 2017

       Appellant, Tommy Tiburcio, appeals from the judgment of sentence

entered in the Berks County Court of Common Pleas, following his jury trial

convictions for one (1) count each of possession of a controlled substance

(“POCS”)─heroin,       POCS─cocaine,       conspiracy   to   commit   POCS─heroin,

conspiracy to commit POCS─cocaine, possession with intent to deliver

(“PWID”)─cocaine, PWID─heroin, conspiracy to commit PWID─cocaine,

conspiracy to commit PWID─heroin, and possession of drug paraphernalia.1

We affirm.

       The trial court opinion sets forth the relevant facts and procedural


____________________________________________


1
 35 P.S. § 780-113(a)(16), 18 Pa.C.S.A. § 903, 35 P.S. § 780-113(a)(30),
18 Pa.C.S.A. § 903, 35 P.S. § 780-113(a)(32), respectively.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-S41042-17


history of this case as follows:

                                   FACTS

         On February 16, 2016, Criminal Investigator David Haser
         executed a search warrant for 1321 Hickory Street, located
         in the City of Reading, Berks County. This house was
         secured with security cameras and a fortified door. When
         initially entering the house, C.I. Haser and other Officers
         immediately proceeded to the kitchen. In the kitchen, in
         plain sight C.I. Haser observed a black revolver on the
         counter, later identified as a Colt Python. Looking up the
         stairs, C.I. Haser observed [Appellant] on the ground.
         Appellant was [detained shortly] thereafter. Proceeding
         further into the house, Carlos Armenta Villa, Co-
         Conspirator, was also discovered and detained.

         After arresting Appellant, the house was searched by
         numerous officers who identified evidence. It was C.I.
         Haser’s ultimate responsibility to collect all this evidence.
         As the amount of evidence discovered was considerable,
         we shall address what was found in each room separately.
         …

         In the kitchen, the following evidence was discovered. As
         already stated, on top of the kitchen counter, a Colt
         Python revolver       was found.        Experts for    the
         Commonwealth testified that Appellant had possessed the
         firearm, as his fingerprints were found on the gun. Within
         feet of the revolver, under the sink, was a large Tommy
         Hilfiger Purse. This purse contained large quantities of
         heroin and cocaine, a cutting agent, a grinder, rubber
         bands, a scale, glassine baggies, sandwich bags, and a
         strainer. An additional bag contained more heroin, cutting
         agent, and a large box of empty packaging material.
         Additionally, a brown paper bag was discovered containing
         cocaine and heroin, which was already packaged for street
         sale.

         Moving on to the bedroom, additional quantities of heroin
         were discovered. While some of this heroin had already
         been processed for individual sale, a significant quantity of
         heroin was found in bulk form.


                                     -2-
J-S41042-17


        Finally, additional evidence of drug distribution was found
        in the basement. In the basement, a second revolver was
        exposed, as well as ammunition for this weapon.
        Moreover, the officers found 36 boxes of packaging
        material, containing 300 glassine baggies each, and a
        press, which is used to press the drugs back into a bulk
        form.

        At trial, the Co-Conspirator also testified. He stated that
        he lived at the searched residence and that he also sold
        drugs there. However, the Co-Conspirator also stated that
        Appellant was permitted to use the house during the day
        to sell and cook narcotics. Additionally, the Co-Conspirator
        testified that Appellant had offered a bribe of
        $5,000─$10,000 for him [to] claim that [Appellant] had
        “no knowledge” of the drug activities.

        Considering all this evidence, a qualified Commonwealth
        expert, Criminal Investigator Brian Errington, testified as
        to how the paraphernalia and quantity of narcotics was
        indicative of someone who intended to distribute drugs,
        and not a user. First, in reaching this conclusion the
        expert relied upon the fact that there was no evidence of
        paraphernalia for personal use. Additionally, the expert
        considered that presence of cutting agents, a drug press,
        and boxes of glassine baggies tended to indicate that
        Appellant wished to process the drugs in a fashion to
        maximize profit, by stretching supply and selling in
        profitable quantities, opposed to using the drugs. Also,
        the expert stated that the weapons found at the house and
        the security measures were indicative of a house used for
        dealing and storing drugs, as these measures are
        commonly needed to protect Appellant from other drug
        dealers. Finally, in reaching his ultimate conclusion, the
        expert estimated the total value of the drugs found at the
        house. In street value, there was approximately $220,000
        of heroin and $27,000 of cocaine.

(Trial Court Opinion, dated February 14, 2017, at 2-4).

     The court outlined the procedural history as follows:

                         PROCEDURAL HISTORY


                                    -3-
J-S41042-17


         On September 29, 2016, a jury convicted [Appellant] of
         the following offenses:

         1. Possession of a Controlled Substance ("POCS")─Heroin;
         2. POCS─Cocaine;
         3. Conspiracy to Commit POCS─Heroin;
         4. Conspiracy to Commit POCS─Cocaine;
         5. Possession with Intent to Deliver a Controlled
         Substance ("PWID")─Cocaine;
         6. PWID─Heroin;
         7. Conspiracy to Commit PWID─Cocaine;
         8. Conspiracy to Commit PWID─Heroin;
         9. Possession of Drug Paraphernalia.

         After being convicted, Appellant was sentenced to several
         consecutive sentences. The first period of incarceration,
         lasting from 54 to 120 months, was received for the
         PWID─Heroin. The second period of incarceration, lasting
         48 to 120 months, was received for the PWID─Cocaine.
         The third period of incarceration, lasting 48 to 96 months,
         was received for Conspiracy to Commit PWID─Heroin. The
         fourth period of incarceration, lasting 36 to 72 months,
         was received for Conspiracy to Commit PWID─Cocaine.
         Appellant was made RRRI eligible for all these sentences.
         Additionally, Appellant was sentenced to one (1) year
         probation for possession of drug paraphernalia.

         Following sentencing, by and through counsel, Appellant
         filed a post-sentence motion for a new trial and
         modification of sentence, on October [5], 2016. [The trial
         court] denied this motion on October 6, 2016.          On
         November 4, 2016, Appellant, now represented by the
         public defender, filed a notice of appeal. Subsequently,
         Appellant petitioned the Court for an extension to file a
         concise statement, which we granted.           A Concise
         Statement was then filed on December 27, 2016.

(Id. at 1-2).

      Appellant raises one issue on appeal:

         WHETHER THE VERDICT OF GUILTY FOR THE CRIMES OF
         POSSESSION WITH INTENT TO DELIVER, USE OR
         POSSESSION OF PARAPHERNALIA, CONSPIRACY, AND

                                    -4-
J-S41042-17


         POSSESSION OF A CONTROLLED SUBSTANCE, IS
         CONTRARY TO THE WEIGHT OF THE EVIDENCE
         PRESENTED AT TRIAL WHEN A COMMONWEALTH WITNESS
         (AND CO-DEFENDANT) WAS HIGHLY MOTIVATED BY SELF-
         PRESERVATION;    NO  DRUGS    WERE   FOUND    ON
         APPELLANT’S PERSON, NONE OF APPELLANT’S PERSONAL
         EFFECTS WERE FOUND AT THE SEARCHED HOME, AND
         THE EXISTENCE OF A PROTECTION FROM ABUSE (PFA)
         ORDER EVICTING APPELLANT FROM HIS HOME IS HIGHLY
         PROBATIVE THAT APPELLANT WAS MERELY PRESENT AT
         THE CRIME SCENE?

(Appellant’s Brief at 9).

      Appellant argues the verdict was against the weight of the evidence for

several reasons.    First, Appellant asserts the testimony of Commonwealth

witness, co-defendant Carlos Armenta-Villa, was not credible because he

was highly motivated by self-preservation, i.e., he was illegally present in

the United States and faced possible deportation if convicted.       Second,

Appellant contends his “mere presence” at the scene was not enough to

support his convictions. Appellant emphasizes there was no evidence that

Appellant had access to the entire home or possession of, or control over,

the drugs discovered there; and police did not discover any of Appellant’s

personal effects in the home. Moreover, Appellant claims he could establish

his presence at the home based on a Protection from Abuse (“PFA”) order,

issued just hours before the search occurred, that evicted Appellant from his

own home. Appellant submits the weight of the Commonwealth’s evidence

did not support the jury’s guilty verdict.     For these reasons, Appellant

concludes he is entitled to a new trial. We disagree.


                                    -5-
J-S41042-17


      As a preliminary matter, generally, a challenge to the weight of the

evidence must be preserved by a motion for a new trial. Pa.R.Crim.P. 607.

The Rule provides:

          Rule 607. Challenges to the Weight of the Evidence

          (A) A claim that the verdict was against the weight of the
          evidence shall be raised with the trial judge in a motion for
          a new trial:

             (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(A)(1)-(3).     “As noted in the comment to Rule 607, the

purpose of this rule is to make it clear that a challenge to the weight of the

evidence must be raised with the trial judge or it will be waived.”

Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa.Super. 2004), appeal

denied, 581 Pa. 672, 863 A.2d 1143 (2004). A claim challenging the weight

of the evidence generally cannot be raised for the first time in a Rule

1925(b)    statement.      Commonwealth         v.   Burkett,     830   A.2d   1034

(Pa.Super. 2003).       An appellant’s failure to avail himself of any of the

prescribed methods for presenting a weight of the evidence issue to the trial

court constitutes waiver of that claim, even if the trial court responds to the

claim in its Rule 1925(a) opinion. Id.

      With respect to our standard of review for a challenge to the weight of

the evidence, we observe:

                                       -6-
J-S41042-17


            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, we may only reverse the lower
            court’s verdict if it is so contrary to the evidence as to
            shock one’s sense of justice. 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). “A weight of the evidence claim concedes that

the evidence is sufficient to sustain the verdict, but seeks a new trial on the

ground that the evidence was so one-sided or so weighted in favor of

acquittal     that   a   guilty   verdict   shocks   one’s   sense    of     justice.”

Commonwealth v. Lyons, 622 Pa. 91, 116, 79 A.3d 1053, 1067 (2013),

cert. denied, 134 S.Ct. 1792, 188 L.Ed.2d 761 (2014).                “[C]redibility

determinations are made by the fact finder and…challenges thereto go to the

weight…of the evidence.” Commonwealth v. Gaskins, 692 A.2d 224, 227

(Pa.Super. 1997).

      “Constructive possession is the ability to exercise conscious control or

dominion over the illegal substance and the intent to exercise that control.”

Commonwealth v. Jones, 874 A.2d 108, 121 (Pa.Super. 2005).                       “The

intent to exercise conscious dominion can be inferred from the totality of the


                                        -7-
J-S41042-17


circumstances.” Id. “Constructive possession may be found in one or more

actors where the item [at] issue is in an area of joint control and equal

access.” Commonwealth v. Valette, 531 Pa. 384, 388, 613 A.2d 548, 550

(1992).

     Instantly, Appellant filed a post-sentence motion that included a

challenge to the weight of the evidence and requested a new trial.      See

Pa.R.Crim.P. 607. The issues Appellant presented in this regard were:

          15. [Appellant] avers that the verdicts are contrary to the
          weight of the evidence as the testimony at the trial was
          not credible to show that [Appellant] possessed the
          cocaine or heroin.

          16. [Appellant] avers that the verdicts are contrary to the
          weight of the evidence as the testimony at the trial was
          not credible to show that [Appellant] conspired with Carlos
          Armenta-Villa to commit the crimes of Possession of a
          Controlled Substance (both cocaine and/or heroin) or
          Possession with the Intent to Deliver a Controlled
          Substance (both cocaine and/or heroin).

          17. [Appellant] avers that the verdicts are contrary to the
          weight of the evidence as the testimony at trial was not
          credible to show that [Appellant] possessed the drug
          paraphernalia.

          18. [Appellant] avers that the verdicts are contrary to the
          weight of the evidence as the testimony at trial was not
          credible to show that [Appellant] possessed with the intent
          to deliver a controlled substance (both cocaine and/or
          heroin).

          19. [Appellant] avers that the co-defendant’s
          testimony was not credible and was contradicted by
          other witnesses.

          20. The verdicts of guilty are against the weight of the
          evidence and [Appellant] is otherwise entitled to

                                     -8-
J-S41042-17


          appropriate relief because the Commonwealth did not
          establish by credible evidence the requisite elements of
          Possession of a Controlled Substance (both cocaine and/or
          heroin), Conspiracy to Commit Possession of a Controlled
          Substance (both cocaine and/or heroin), Possession with
          the Intent to Deliver a Controlled Substance (both cocaine
          and/or heroin), Conspiracy to Commit Possession with the
          Intent to Deliver a Controlled Substance (both cocaine
          and/or heroin), and Possession of Drug Paraphernalia.

(See Post-Sentence Motion, filed 10/5/16, at 3-4 unpaginated) (emphasis

added).   In his Rule 1925(b) statement, Appellant presented the following

weight challenge:

          The verdict of guilty to all charges is contrary to the weight
          of the evidence presented at trial when co-defendant and
          prosecution witness Carlos Armenta Villa was not credible,
          as he had an interest in making allegations against
          the Appellant to avoid deportation, and as he did not
          implicate the Appellant at the time of arrest; when
          defense witness Nathaly Salazar stated she had kicked the
          Appellant out of their house on the night of the arrest
          pursuant to a valid Protection from Abuse (PFA) order
          issued hours before Appellant’s arrest at the site of the
          underlying crimes; and when the Appellant had no
          personal belongings, other than those on his person, found
          at the site of the underlying crimes.

(See Rule     1925(b) Statement,      filed 12/27/16, at 1-2       unpaginated)

(emphasis added).     When we compare Appellant’s generic claim regarding

the credibility of his co-defendant’s testimony, as raised in Appellant’s post-

sentence motion, with the more specific claim regarding his co-defendant’s

credibility due to self-preservation in seeking to avoid deportation, as raised

for the first time in his Rule 1925(b) statement, we must conclude Appellant

did not properly preserve this particular aspect of his weight issue. So it is


                                      -9-
J-S41042-17


arguably waived for purposes of appellate review.         See Pa.R.Crim.P. 607;

Gillard, supra; Burkett, supra.

      Moreover, the trial court did not specifically address this concern in its

analysis.     Nevertheless, the record reveals the witness’ credibility in this

regard was fully pursued at trial through cross-examination and included in

the jury instructions.     Thus, even if Appellant had properly preserved this

aspect of his weight claim for appellate review, we would see no error in the

court’s decision to deny relief. See Champney, supra (explaining weight of

evidence is exclusively for finder of fact who is free to believe all, part, or

none of evidence and to determine credibility of witnesses; this Court cannot

substitute its judgment for that of fact-finder and may reverse verdict only if

it is so contrary to evidence as to shock one’s sense of justice).

      In response to Appellant’s remaining weight claims, the trial court

reasoned:

            Appellant argues that all his convictions are against the
            weight of the evidence.

            The weight of trial evidence is a choice for the fact-finder.
            Commonwealth v. West, 937 A.2d 516, 521 (Pa.Super.
            2007). Where the fact-finder renders a guilty verdict and
            the defendant files a motion for a new trial on the basis
            that the verdict was against the weight of the evidence, “a
            trial court is not to grant relief unless the verdict is so
            contrary to the evidence as to shock one’s sense of
            justice.” Commonwealth v. Stays, 70 A.3d 1256, 1267
            (Pa.Super. 2013)….

            When an Appellant challenges a trial court’s denial of a
            post-sentence motion for new trial based on the weight of
            the evidence, the standard of review is limited to whether

                                       - 10 -
J-S41042-17


        the trial court abused its discretion:

           We do not reach the underlying question of whether
           the verdict was, in fact, against the weight of the
           evidence. We do not decide how we would have
           ruled on the motion and then simply replace our own
           judgment for that of the trial court. Instead, this
           Court determines whether the trial court abused its
           discretion in reaching whatever decision it made on
           the motion, whether or not that decision is the one
           we might have made in the first instance.

        West[, supra at 521]. An abuse of discretion “is not
        merely an error in judgment. Rather, it involves bias,
        partiality, prejudice, ill-will, manifest unreasonableness or
        a misapplication of the law.” Id. (citations omitted). A
        proper exercise of discretion, by contrast, “conforms to the
        law and is based on the facts of record.” Id.

        The Commonwealth introduced evidence that Appellant
        constructively possessed and intended to distribute
        significant quantities of heroin and cocaine. Primarily, to
        accomplish this, C.I. Errington, testified that [Appellant]
        constructively possessed significant amounts of material
        needed to process, protect, and sell narcotics.
        Additionally, C.I. Haser presented copious evidence that
        the stash house contained significant quantities of both
        cocaine and heroin. Also, the Co-Conspirator testified that
        he witnessed [Appellant] sell cocaine and heroin from the
        house.     Finally, tying this altogether, Commonwealth
        witnesses testified that Appellant’s fingerprint[s were]
        found on a firearm at the stash house, where [Appellant]
        was initially arrested and all the aforementioned evidence
        was uncovered.        As such, the guilty verdicts, when
        weighed against the relevant law and against the facts as
        elucidated above, do not reveal any partiality, prejudice,
        bias or ill will, nor do the verdicts shock one’s sense of
        justice. In light of the testimony and physical evidence
        which was presented to the jury, we see no reason to
        conclude that the jury’s verdict was contrary to the weight
        of the evidence.

(Trial Court Opinion at 7-8). The record supports the court’s analysis. The


                                    - 11 -
J-S41042-17


totality of the Commonwealth’s evidence produced a sufficient nexus

between Appellant, the stash house, and the contraband recovered from the

stash house. Based on the foregoing, we see no abuse of discretion in the

trial court’s assessment of Appellant’s weight of the evidence claim.   See

Lyons, supra; Champney, supra. Accordingly, we affirm.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/2017




                                  - 12 -
