J-S59036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

LEE PEREZ

                           Appellant                   No. 3424 EDA 2014


              Appeal from the Judgment of Sentence June 4, 2014
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s):CP-51-CR-0005590-2013

BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                      FILED OCTOBER 12, 2016

        Appellant, Lee Perez, appeals from the judgment of sentence of

eleven-and-one-half to twenty-three months’ imprisonment followed by six

years’ probation entered in the Philadelphia County Court of Common Pleas

following jury trial. Appellant claims that the jury’s verdict on the charges of

possession with intent to deliver1 (“PWID”) and conspiracy2 was against the

weight of the evidence. We affirm.

        The facts and procedural history relevant to this appeal are as follows.3

A team of Philadelphia Police officers engaged in surveillance for narcotics


*
    Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
2
    18 Pa.C.S. § 903(a).
3
 The trial court set forth a detailed review of the Commonwealth’s evidence.
See Trial Ct. Op., 1/20/16, at 2-9.
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trafficking on January 9, 2013, between 11:20 a.m. and 12:20 p.m.            At

various times during the surveillance, they observed Michael Ocasio, Angel

Seda, and Appellant engage in suspected sales. For all but one of the sales,4

backup officers stopped the buyers and recovered heroin.

      Officer Melvin Floyd testified that he observed Appellant engage in two

sales. First, at approximately 12:05 p.m., Officer Floyd saw Seda go into an

alley and when he returned, he handed a “bundle”5 to Appellant. Appellant

then received money from a buyer, Samuel Kramer, and handed Kramer

small blue packets from the bundle. Backup officers stopped Kramer after

the transaction and recovered two blue packets of heroin from Kramer’s

vehicle. Shortly thereafter, Officer Floyd observed Appellant exchange small

blue objects with a buyer, David Croner, for money. Backup officers stopped

Croner and recovered four clear packets of heroin with blue inserts stamped

“my turn.” At 12:20 p.m., Appellant and Seda left the scene in a red Nissan

Altima. Backup officers stopped the vehicle and arrested them. The officers

recovered Appellant’s wallet from the trunk of the vehicle. Appellant’s wallet

contained his identification and a total of $100 composed of one $20 bill,




4
  The backup officers were not able to locate the suspected buyers of the
transaction that occurred at 11:43 a.m.
5
  A “bundle” consists of numerous “packets” of heroin. N.T. Trial I, 5/8/14,
at 58. Officer Floyd testified that in Philadelphia, in his experience, a bundle
contains twelve to fourteen packets secured by a rubber band. Id.



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four $10 bills, six $5 bills, and ten $1 bills.        No narcotics were recovered

from Appellant, Seda, or the vehicle.

         At the jury trial held from May 8 to May 13, 2014, the Commonwealth

presented testimony from Officer Floyd regarding his surveillance and from

the police officers involved in the arrests of Appellant, co-defendant, and the

buyers.6 However, during Appellant’s cross-examination of Officer Floyd, the

officer conceded that he was not certain when he first saw Appellant, when

Appellant joined the co-defendant, and whether Appellant was present when

the officer began the surveillance.         N.T. Trial I at 89-92, 99.          The officer

acknowledged       that   Appellant   was     not   involved     in   the    first   several

transactions he observed.           Id. at 92.        Moreover, Appellant’s cross-

examination revealed that Officer Floyd, for the first time at trial, stated he

saw Appellant opening the trunk of the Nissan Altima before leaving the

scene. Id. at 103-04. Officer Floyd did not memorialize that information in

his investigation reports or include it in his preliminary hearing testimony.

Id.   However, the officer who stopped and searched the Nissan Altima

testified   that   the    radio   broadcast   initiating   the    stop      indicated   that

“something was placed in the trunk before they left.” N.T. Trial III, 5/12/14,

at 66.




6
  The parties stipulated that the contraband recovered from the buyers and
in the area of the transactions was heroin.



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      Appellant, in his case-in-chief, presented character evidence of his

reputation as a law-abiding person.       On May 13, 2014, the jury found

Appellant guilty of PWID and conspiracy, and on June 4, 2014, the trial court

sentenced him to eleven and one-half to twenty-three months’ imprisonment

followed by six years’ probation.

      Appellant filed a timely post-sentence motion challenging the weight of

the evidence, which was denied by operation of law on October 10, 2014.

Appellant filed a timely notice of appeal on November 10, 2014, see 1

Pa.C.S. § 1908, and Appellant complied with the trial court’s order to submit

a Pa.R.A.P. 1925(b) statement.

      Appellant’s sole claim on appeal is that the evidence was against the

weight of the evidence. See Appellant’s Brief at 3. Appellant contends that

he is entitled to a new trial because of the combined effects of (1) the

inconsistencies in Officer Floyd’s testimony regarding when he first observed

Appellant with co-defendant Ocasio and Seda and (2) Officer Floyd’s failure

to indicate before trial that he observed Appellant open the trunk of the

Altima before leaving the scene.    Id. at 14-15. Appellant summarizes his

argument as follows:

             In this case, the discrepancies in [Officer Floyd’s]
         account of who was dealing drugs, calls into question his
         whole story and makes his testimony suspect.               His
         eleventh hour inclusion of facts that implicate [A]ppellant
         is equally suspect. Such testimony calls into question [the
         officer’s] credibility and leads to the inescapable conclusion
         that there was reasonable doubt as to [A]ppellant’s guilt.
         Given such testimony any finding of culpability on


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         [A]ppellant’s part would be highly speculative, especially
         as [A]ppellant introduced good character evidence, which
         may in and of itself create a reasonable doubt of guilt.

Id. at 17 (citation omitted). No relief is due.

      The principles governing a challenge to the weight of the evidence are

well settled.

             A verdict is against the weight of the evidence “only
         when the jury’s verdict is so contrary to the evidence as to
         shock one’s sense of justice.” A weight of the evidence
         claim is primarily directed to the discretion of the judge
         who presided at trial, who only possesses “narrow
         authority” to upset a jury verdict on a weight of the
         evidence claim. Assessing the credibility of witnesses at
         trial is within the sole discretion of the fact-finder. A trial
         judge cannot grant a new trial merely because of some
         conflict in testimony or because the judge would reach a
         different conclusion on the same facts, but should only do
         so in extraordinary circumstances, “when the jury’s verdict
         is so contrary to the evidence as to shock one’s sense of
         justice and the award of a new trial is imperative so that
         right may be given another opportunity to prevail.” . . .

Commonwealth v. Blakeney, 946 A.2d 645, 652-53 (Pa. 2008) (citations

omitted).

      “[T]he 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. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citation and

some quotation marks omitted). An appellate court reviews the exercise of

discretion by the trial court, and “not . . . the underlying question of whether




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the verdict is against the weight of the evidence.”          Id. (citation and

emphasis omitted).

      Instantly, the trial court determined that Officer Floyd’s testimony “for

the most part” was “precise and consistent” and the jury was entitled to

credit his testimony.    Trial Ct. Op. at 10.   The court concluded that the

verdict did not “shock one’s sense of justice.” Id. at 11.

      Although Appellant’s cross-examination revealed discrepancies in

Officer Floyd’s testimony, we agree with the trial court that those

discrepancies did not affect the reliability of his entire testimony. Contrary

to Appellant’s arguments, Officer Floyd’s remaining testimony, which

included his observations of Appellant receiving a bundle of heroin from

Seda, and personally engaging in two sales at approximately 12:05 p.m.,

was not tainted by the discrepancies and could be credited by the jury.

Similarly, we cannot accept Appellant’s contention that his character

evidence was of such greater weight than Officer Floyd’s testimony that to

accord the defense’s evidence lesser weight would deny justice. See Clay,

64 A.3d at 1055. Thus, having discerned no abuse of discretion in the trial

court’s rejection of Appellant’s weight of the evidence challenge, we affirm.

See Blakeney, 946 A.2d at 652-53.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/12/2016




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