J-S08006-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    BARULIO PEREZ,

                             Appellant                 No. 689 EDA 2018


        Appeal from the Judgment of Sentence Entered January 29, 2018
                 In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0000579-2017


BEFORE: BENDER, P.J.E., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED APRIL 25, 2019

        Appellant, Barulio Perez, appeals from the judgment of sentence of an

aggregate term of 3½ to 8 years’ incarceration, imposed after he was

convicted of possession with intent to deliver a controlled substance (PWID),

35 P.S. § 780-113(a)(30), criminal conspiracy to commit PWID, 18 Pa.C.S. §

903(a), and possession of a controlled substance, 35 P.S. § 780-113(a)(16).

We affirm.

        Appellant was convicted of the above-stated charges following a jury

trial. On January 29, 2018, the trial court sentenced him to the aggregate

term stated supra. Appellant filed a post-sentence motion nunc pro tunc on




____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-S08006-19



February 26, 2018, which the court accepted, but ultimately denied on

February 27, 2018.

      Appellant then filed a timely notice of appeal, and he also timely

complied with the trial court’s order directing him to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal.           The trial court

subsequently issued a Rule 1925(a) opinion, stating that it was relying on the

opinion it had issued in conjunction with its February 27, 2018 order denying

Appellant’s post-sentence motion.

      Herein, Appellant states two issues for our review:

      A. Whether the evidence was sufficient to sustain [Appellant’s]
         convictions for [PWID] and conspiracy to [commit PWID]?

      B. Was the verdict against the weight of all the evidence in
         regards to the proof of whether or not [Appellant] was properly
         convicted of [PWID] and conspiracy to [commit PWID]?

Appellant’s Brief at 7.

      In assessing Appellant’s issues, we have reviewed the certified record,

the briefs of the parties, and the applicable law.      Additionally, we have

reviewed the February 27, 2018 opinion of the Honorable Maria L. Dantos of

the Court of Common Pleas of Lehigh County.          We conclude that Judge

Dantos’s extensive, well-reasoned opinion accurately disposes of the issues

presented by Appellant. See Trial Court Opinion (TCO), 2/27/18, at 1-14.




                                     -2-
J-S08006-19



Accordingly, we adopt that portion of her opinion as our own and affirm

Appellant’s judgment of sentence for the reasons set forth therein.1

       Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/25/19




____________________________________________


1 Judge Dantos also addresses a sentencing claim that Appellant presented in
his post-sentence motion and Rule 1925(b) statement. See TCO at 14-17.
However, Appellant has abandoned that sentencing issue on appeal and, thus,
we do not adopt that portion of Judge Dantos’s decision.

                                           -3-
                                                                            Circulated 04/05/2019 02:23 PM




    IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY. PENNSYLVANIA

                                      CRIMINAL DIVISION


    COMMONWEALTH OF PENNSYLVANIA                      )
                                                      )
         vs.                                          )     No. 0579/2017
                                                      )
    BARULIO M. PEREZ,                                 )
         Defendant                                    )
                                                                                          �
                                                                                •o        :;
                                                                                Mr-
                                                                                                  -n
                                                                                                  -
                                                                                          "Tl
                                                                                �1"'1
                                           ********                             G) :;r)
                                                                                          fT1
                                                                                          01
                                                                                :c�
                                                                                no        N       (-
APPEARANCES:                                                                    o-q       -J
                                                                                c
                                                                                zO
                                                                                -IC)
                                                                                          -0      rn
                                                                                          -en..
                                                                                          '.:J:
                       TIMOTHY M. DOHERTY, ESQUIRE,                             -<c::
                                                                                • :;:o            0
                       ASSISTANT ATTORNEY GENERAL,                               ,:,--1
                                                                                 �(/)
                             On behalf of the Commonwealth                                -.J


                       KATHRYN SMITH, ESQUIRE,
                            On behalf of Defendant


                                           ********
                                            OPINION

MARIA L. DANTOS, J.

               Defendant, Barulio Perez, after a jury trial, was found guilty on December

15, 2017, of Possession With Intent to Deliver a Controlled Substance,1 Criminal

Conspiracy to Commit Possession With Intent to Deliver a Controlled Substance,2 and

Possession of a Controlled Substance.s Thereafter, on January 29, 2018, this Court

sentenced the Defendant to the following: On the charge of Possession With Intent to

Deliver a Controlled Substance to a term of imprisonment of not less than forty-two (42)

months nor more than eight (8) years; on the count of Criminal Conspiracy to Possession

With Intent to Deliver a Controlled Substance to a term of imprisonment of not less than


        35 P.S. § 780-113(a)(30),
2       35 P.S. § 780-113(a)(30); 18 Pa. C.S.A. § 903(a).
forty-two (42) months nor more than eight (8) years, with these sentences running

concurrently to each other.       The charge of Possession merged with Possession With

Intent to Deliver a Controlled Substance for sentencing purposes. Presently before this

Court is Defendant's Post Sentence Motion Pursuant to Pennsylvania Rule of Criminal

Procedure Rule 720.      In his Post Sentence Motion, the Defendant challenges the

sufficiency and weight of the evidence. Additionally, the Defendant requests that this

Court reconsider and modify the sentence imposed.


A. Challenging the Sufficiency of the Evidence

             The Defendant asserts that the verdict was not supported by sufficient

evidence. Defendant's assertion lack merit.

             A claim challenging the sufficiency of the evidence is a question of law

which asserts that there is insufficient evidence to support at least one material

element of the crime for which the Defendant was convicted. Commonwealth v. Lyons,

833 A.2d 245, 258 (Pa. Super. 2003).               The standard for reviewing sufficiency

challenges was explained in the following manner by the Superior Court of

Pennsylvania:

              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.

Commonwealth      v.   Taylor,    831   A.2d   661,    663   (Pa.   Super.   2003),   quoting

Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001). In addition, the

facts and circumstances established by the Commonwealth need not preclude every


3     35 P.S. § 780-113(a)(16).



                                               2
possibility of innocence.   Commonwealth v. Hunzer, 868 A.2d 498, 505 (Pa. Super.

2005). Any doubts regarding a defendant's guilt are properly resolved by the finder of

fact 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. 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. Id. If the finder

of fact reasonably could have determined from the evidence adduced that all of the

necessary elements of the crime were established, then the evidence will be deemed

sufficient to support the verdict. Id. at 506.

              In the instant case, the Defendant was found guilty of Possession of a

Controlled Substance.       This crime is defined as "[k]nowingly or intentionally

possessing a controlled or counterfeit substance by a person not registered under this

act, or a practitioner not registered or licensed by the appropriate State board, unless

the substance was obtained directly from, or pursuant to, a valid prescription order or

order of a practitioner, or except as otherwise authorized by this act." 35 P.S. §780-

113(a)(l6). Initially, the Commonwealth must establish that the Defendant possessed

the controlled substance. See 35 P.S. § 780-113(a)(16). Because the drugs were not

found on the Defendant's person, the Commonwealth must prove constructive

possession.   Commonwealth v. Kirkland, 831 A.2d 607, 610 (Pa. Super. 2003);

Commonwealth v.       Aviles,   419 Pa.   Super.   345, 615 A.2d 398,       401   (1992);

Commonwealth v. Mudrick, 510 Pa. 305, 507 A.2d 1212, 1213 (1986). "Constructive

possession requires proof of the ability to exercise conscious dominion over the

substance, the power to control the contraband, and the intent to exercise such

control." Commonwealth v. Bricker, 882 A.2d 1008, 1014 (Pa. Super. 2005), citing,



                                             3
Commonwealth v. Petteway, 847 A.2d 713, 716 (Pa. Super. 2004). Elements of

constructive possession of contraband may be inferred from the totality of the

circumstances a.nd may be proven by circumstantial evidence.         Commonwealth v.

Gray, 322 Pa. Super. 37, 469 A.2d 169 (1983), affirmed, 509 Pa. 476, 503 A.2d 921

(1985); Commonwealth v. Haskins, 450 Pa. Super. 540, 677 A.2d 328 (1996), appeal

denied, 547 Pa, 751, 692 A.2d 563 (1997).

              Furthermore, the jury found the Defendant guilty of Possession with

Intent to Deliver a Controlled Substance and Criminal Conspiracy to Possession with

Intent to Deliver a Controlled Substance. A person is guilty of Possession with Intent

to Deliver a Controlled Substance under 35 P.S. § 780-113(a}(30) if he delivers or

possesses with the intent to deliver, a controlled substance, and he is not registered

under this act or licensed by the appropriate State board, or he knowingly creates,

delivers or possesses with the intent to deliver a counterfeit controlled substance. 35

P.S. § 780� 113(a)(30).

              In addition, "la} person is guilty of [C]onspiracy with another person or

persons to commit a crime if with the intent of promoting or facilitating its commission

he agrees with such other person or persons that they or one or more of them will

engage in conduct which constitutes such crime or an attempt or solicitation to

commit such crime." 18 Pa. C.S.A. § 903(a)(l). It is axiomatic that a person may be

held accountable for the criminal conduct of another where the Commonwealth can

establish the existence of a conspiracy. 18 Pa. C.S.A. § 903{a)(l). Under conspirator

liability, each conspirator is criminally responsible for the actions of his co-

conspirators, as long as the acts are in furtherance of the conspiracy, even though one




                                            4
does not perform the immediate act complained of. Commonwealth v. Robinson, 351

Pa. Super. 309, 505 A.2d 997 (1986).      To prove the existence of a conspiracy the

Commonwealth needs to show the defendant reached an agreement to commit or aid

an unlawful act with another person and that an overt act was done in furtherance of

the conspiracy.   Commonwealth v. Rios, 546 Pa. 271, 684 A.2d 1025 (1996).          "An

explicit or formal agreement to commit a crime can seldom, if ever, be proved and it

need not be, for proof of a criminal partnership is almost invariably extracted from the

circumstances that attend the activities." Commonwealth v. Johnson, 719 A.2d 778

(Pa. Super. 1998), citing Commonwealth v. Kennedy, 499 Pa. 389, 395, 453 A.2d 927,

929 {1982), quoting, Commonwealth v. Strantz, 328 Pa. 33, 43, 195 A. 75, 80 (1937).

Finally, a 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.

Woodward, 418 Pa. Super. 218, 226, 614 A.2d 239, 243 (1992).

             In the instant case, the evidence presented at trial established that on or

about December 9, 2016, Agent Mark Boyer and Agent David Carolina, narcotics

agents with the Pennsylvania Office of the Attorney General, Bureau of Narcotics and

Drug Control, were utilizing the services of a Confidential Informant to effectuate a

controlled buy of heroin from a Hispanic male known as "Moreno," later identified as

the Defendant, Barulio Perez.    The Confidential Informant communicated with the

Defendant via text messages. This initial communication established the meeting spot

to be in a Kmart parking lot located at 1502 South 4th Street, Allentown, Lehigh

County, Pennsylvania. Consequently, the narcotics agents set up surveillance in this

area.   Prior to meeting with the Defendant, Agent Boyer searched the Confidential



                                           5
Informant and his vehicle'! for currency and contraband. Nothing was located. The

Confidential Informant was then driven to the predetermined location by Agent Ed

Rodriguez. Agent Boyer followed the Confidential Information to the Kmart parking

lot.    At all times during this controlled buy, Agent Boyer kept the Confidential

Informant in visual range to ensure the integrity of the transaction.           Agent Boyer

waited about 30 to 40 minutes, when a dark-colored Toyota Camry arrived in the

McDonald's parking lot that is situated adjacent to the Kmart store.            This vehicle,

bearing a New York license plate, was observed driving slowly into the Kmart parking

lot, and then leaving the lot.         There were two (2) occupants in this vehicle.

Surveillance also observed a second dark-colored Toyota Camry with a single occupant

drive through the Kmart parking lot and then drive to a nearby gas station. This

second vehicle also had a New York license plate.s

               Almost immediately thereafter, the Confidential Informant was instructed

by the Defendant that the location had changed, and that he was to meet a courier at

the 7-11 located at 11 East Susquehanna Street, Allentown, Pennsylvania, Lehigh

County.s (C. Ex. 2); (C. Ex. 3); (C. Ex. 4); (C. Ex. 5). As part of this controlled buy,

surveillance was established around the 7-11.7 (C. Ex. 2); (C. Ex. 3); (C. Ex. 4); (C. Ex.

5}.    Surveillance units observed two (2) Toyota Camry sedans arrive at this newly-

established location. It was noted that both Toyota vehicles had New York registration


4      A recording device was placed in the vehicle.
s      Agent Boyer testified that it is common for a drug dealer to utilize a second vehicle,
because it effectively separates the drug dealer from the drugs, while simultaneously allowing
him to keep a vigilant watch on his valuable drugs.
6      The 7-11 was located less than half (1/2) a mile from the Kmart parking lot. This
convenience store is located on the northeast corner of Front and Susquehanna Streets,
Allentown, Lehigh County.
7      Agent Carolina was positioned across the street from the 7-11 store, in the Domino's
parking lot.



                                              6
plates. One of the subject vehicles had two (2) occupants in it; the Defendant as the

driver, and a female passenger, later identified as Reina Encarnacion. The Defendant

parked his vehicle at the gasoline pumps, while the other Toyota Camry parked closer

to the back of the 7-11 convenience store.

              The courier, later identified as thirty-six (36) year old Co-Defendant

Silvestre Evaristo, was in the second dark-colored Toyota Camry.a           Co-Defendant

Evaristo testified that he had received a telephone call from the Defendant early in the

day on December 9, 2016. He was instructed by the Defendant to ''wait for him," and

that they would meet up. After Co-Defendant Evaristo finished his work for the day as

a taxi driver in the Bronx, New York, the Defendant met up with him on the street.?

The Defendant informed Co-Defendant Evaristo that he should wait for a male who

was going to give him something. As instructed, Co-Defendant Evaristo waited in his

vehicle, until ultimately a man arrived. Co-Defendant Evaristo exited his vehicle, and

entered the unknown-? male's vehicle for less than five (5) minutes. During this time,

the male furnished Co-Defendant Evaristo with a package, which Co-Defendant

Evaristo placed in the trunk of his vehicle.       After this transaction, Co-Defendant

Evaristo once again met up with the Defendant who was parked on the street. The

Defendant approached Co-Defendant Evaristo's vehicle and inquired if he had the

package.   When Co-Defendant Evaristo answered in the affirmative, the Defendant

provided him with an address in Bethlehem, Lehigh County, Pennsylvania.          The plan

was to meet up again at this Bethlehem address. After driving approximately two (2)


a      Co-Defendant Evaristo had known the Defendant for approximately two (2) years. They
had met each other in the Bronx at a pool game.
9     The Defendant arrived in a black Toyota, with a female passenger.
10    The male did not identify himself by name to Co-Defendant Evaristo. He did express to
Co-Defendant Evaristo that "he did not like doing things like this."



                                             7
hours, Co-Defendant Evaristo arrived at the lccation.!'       The Defendant called Co-

Defendant Evaristo and instructed him to park and wait for him.           Co-Defendant

Evaristo observed the Defendant enter the Bethlehem residence and remain there for

about fifteen (15) to twenty (20) minutes.        Then, the Defendant emerged from the

house and Co-Defendant Evaristo gave him the package from the trunk of the vehicle.

The Defendant reentered the residence with the package for another ten (10) minutes.

When he finally emerged, the Defendant told Co-Defendant Evaristo to follow him to

the Kmart parking lot in Allentown, Lehigh County, Pennsylvania.            When Co-

Defendant Evaristo arrived at this location and parked, he did not view the Defendant

in the Kmart parking lot. After a few minutes, Co-Defendant Evaristo received a call

from the Defendant advising him that they had to move from there because they were

police cars in the parking lot. Consequently, Co-Defendant Evaristo moved his vehicle

to a nearby gas station where he purchased gasoline for his vehicle. After other phone

calls, ultimately the Defendant told Co-Defendant Evaristo that he should meet him at

the 7-11 convenience store located at 11 East Susquehanna Street, Allentown, Lehigh

County, Pennsylvania.
             When Co-Defendant Evaristo arrived at the 7-11 store, he observed the

Defendant's vehicle parked by the gas pumps, and he parked his vehicle closer to the

back of the establishment. Co-Defendant Evaristo exited his vehicle and went to the

Defendant's vehicle. He noted that there still was a front seat female passenger, but

now there was also a male in the rear of the car.          At that time, the Defendant




11    The Defendant had arrived before him.




                                              8
instructed Co-Defendant Evaristo to furnish the male (the Confidential Informant)12

with the drugs that the Defendant had in his car.             (C. Ex. 6).    Complying, Co-

Defendant Evaristo took .the drugs from the Defendant and exited the Defendant's

vehicle. (C. Ex. 6). Co-Defendant Evaristo entered the 7- 11 convenience store. The

Confidential Informant also entered the 7-11, and met with Co-Defendant Evaristo in

the first aisle of the convenience store. There was a brief encounter in which Co-

Defendant Evaristo took the drugs out of his hcodie and gave them to the Confidential

Informant.    Co-Defendant Evaristo subsequently returned to the area where the

Defendant's vehicle was parked.        The Defendant stated to Co-Defendant Evaristo,

"Let's go. This is dangerous."

              In the interim, Agent Carolina signaled to the other agents that the

Confidential Informant had received the package 13 in the drug transaction.               The

Defendant, Co-Defendant Evaristo, and Renia Encarnacion were subsequently taken

into custody on scene.       They were transported to police headquarters, where the

Defendant told Co-Defendant Evaristo "not to say anything.               He was getting an

attorney." Shortly thereafter, the Co-Defendants were separated. When Co-Defendant

Evaristo and the Defendant saw each other again later that night, as well as a third


12      Agent Rodriguez had driven the Confidential Informant to the 7-11 and parked near the
side of the convenience store. Approximately one (1) minute after their arrival, the Defendant
arrived in his Toyota Camry and parked by the gas pumps. This was the same Toyota Camry
that had previously been at the Kmart parking lot. The Confidential Informant entered the rear
passenger side of the Toyota Camry with the two (2) occupants in it. Then, a second dark
Toyota Camry arrived and parked near the back of the store. Agent Carolina notified Agent
Rodriguez that Co-Defendant Evaristo had exited his vehicle and had walked towards the
vehicle parked by the gas pumps.
13      The Confidential Informant had turned over to Agent Rodriguez a tubular shaped
package in a black plastic bag containing suspected heroin. (C. Ex. 6); (C. Ex. 18). The agents
noted that this was unusual packaging (usually in bundles) and that it reflected that it was
most likely transported from a larger source. The street value of 233 grams of heroin is
approximately Seventy Thousand ($70,000.00) Dollars. (C. Ex. 10).



                                              9
time, the Defendant reiterated that Co-Defendant Evaristo should not say anything

and that he was securing an attorney. He also expressed to Co-Defendant Evaristo

that "Pita" (the Confidential Informant) had turned them in.        During the course of the

arrest, two (2) cellular phones were seized from the Defendant, one (1) cellular phone

from Renia Encarnacion, and two (2) cellular phones were seized from Co-Defendant

Evaristo's vehicle as the result of a consent search.v' (C. Ex. 13); (C. Ex. 14); (C. Ex.

15). In addition, Co-Defendant Evaristo was provided with Miranda warnings prior to

an interview at the regional office.     He waived his Miranda rights and provided the

authorities with a statement implicating the Defendant.

              Moreover, at trial, Co-Defendant Evaristo testified!" that he had made a

total of five (5) deliveries of drugs to "Pita" (the Confidential Informant) at the behest of

the Defendant. The first transaction occurred in 2016, when the Defendant told him

to bring cocaine to a man in Allentown, Pennsylvania, Lehigh County. Co-Defendant

Evaristo accepted the task, as he needed the money.                The Defendant and Co-

Defendant Evaristo met in a parking lot in the Bronx, and the Defendant provided Co-

Defendant Evaristo with two (2) square-shaped packages of cocaine that he placed in



14      Both Toyota sedans were taken into custody and searched.              No drugs, drug
paraphernalia or currency was located in the vehicles. In addition, the Defendant and Co-
Defendant Evaristo executed a consent form to search their respective two (2) cellular phones.
(C. Ex. 11}; (C. Ex. 16). The Defendant's and Co-Defendant Evaristo's cellular phones were
sent to the lab for analysis.
is      Co-Defendant Evaristo testified that in exchange for his testimony in court, he
previously had entered a guilty plea to Conspiracy to Possession With Intent to Deliver and
Possession With Intent to Deliver. The terms of the deal were that the amount of heroin was
reduced from 207 grams to between 50 grams and 100 grams which resulted in a lower gravity
score. In addition, the agreement on Count 1 was that the Defendant's minimum sentence
would not exceed the standard range of the Sentencing Guidelines; to wit, 22 months to 36
months. In other words, it was agreed that his minimum sentence would not exceed three (3)
years. Also, in Count 2, the Defendant was to receive a probationary sentence that would run
consecutively to any jail sentence. As part of the deal, Co-Defendant Evaristo agreed to testify
truthfully at the Defendant's trial.



                                               10
 the trunk of his vehicle.      The Defendant furnished Co-Defendant Evaristo with an

 address in Allentown, and they separately drove to this designated location.              When

 "Pito" arrived, Co-Defendant Evaristo gave him the drugs.Is After the transaction, Co-

 Defendant Evaristo returned to New York. On a later date, the Defendant paid Co-

 Defendant Evaristo $400.00 for making this delivery.

                The second delivery occurred approximately a week and a half later. At

 that time, after exchanging some brief communication, the Defendant and Co-

 Defendant Evaristo met in the same parking lot in the Bronx. The Defendant gave him

 drugs which were packaged in the same· manner as before, and instructed Co-

Defendant Evaristo to deliver them to "Pito" at the same address in Allentown,

Pennsylvania, Lehigh County. Again, the Defendant and Co-Defendant Evaristo drove

separately to the location. When "Pito" arrived, Co-Defendant Evaristo gave him the

drugs. This time, "Pito" gave Co-Defendant Evaristo $400.00 and instructed him to

give it to the Defendant.

               Approximately three (3) weeks later, the third transaction occurred. As

with the previous two (2) incidents, after exchanging some brief communication, the

Defendant and Co-Defendant Evaristo met in the same parking lot in the Bronx. This

time, however, Co-Defendant Evaristo entered the Defendant's vehicle and together

they drove to Manhattan, New York.          Co-Defendant Evaristo met with an unknown

male who he did not recognize. This male and Co-Defendant Evaristo left together in

the male's vehicle, and they drove to the Bronx. The male parked his vehicle and told

Co-Defendant Evaristo to wait for him.              When the unknown actor returned, he


16      At the time of the delivery, the Defendant was parked in his vehicle about ten (10') feet
away.



                                               lI
 possessed a small bag containing three (3) rocks of cocaine. He handed the drugs to

 Co-Defendant Evaristo, who placed the drugs in the back seat of the vehicle.      Co-

 Defendant Evaristo called the Defendant to advise him that they had the package. The

 Defendant instructed him to take it to "Pito" at an address on Penn Street in the

 Lehigh Valley. Co-Defendant Evaristo complied with this request and met with "Pita"

 to give him the drugs. Afterwards, Co-Defendant Evaristo returned to the Bronx. The

Defendant was not physically present for this drug transaction. The following day, the

Defendant furnished Co-Defendant Evaristo with $300.00 for his involvement in the

drug deal.

              The fourth drug trip to Lehigh County, Pennsylvania entailed Co-

Defendarit Evaristo receiving a telephone call from the Defendant in which he

instructed Co-Defendant Evaristo to drive to "Pita's" residence to pick something up.

When Co-Defendant Evaristo arrived, "Pito" told him to wait because he was counting

money. "Pita" gave Co-Defendant Evaristo Nine Thousand ($9,000.00) Dollars which

was separated in thousand dollar bundles. Co-Defendant Evaristo was told to deliver

the money to the Defendant. Co-Defendant Evaristo complied.

              Agent Kirk Schwartz, a narcotics agent with the Pennsylvania Office of

the Attorney General, Bureau of Narcotics and Drug Control, and an expert in drug

trafficking, opined that the Defendant possessed the heroin with the intent to deliver

it. Agent Schwartz based his opinion, inter alia, on his training and experience, as

well as the quantity of drugs seized, the statement of Co-Defendant Evaristo, the use

of separate vehicles, and the circumstances of bringing product to Pennsylvania to

furnish to another at the direction of a third party.




                                            12
              Viewing all the evidence and all reasonable inferences arising therefrom

in the light most favorable to the Commonwealth, it is clear that the evidence was

sufficient to enable a finder of fact to conclude that all the elements of the offenses

were established beyond a reasonable doubt. Indeed, at the conclusion of the jury

trial, the jury had no doubt that the Defendant constructively possessed the heroin by

exercising conscious dominion and control over it, and that he had the intent to

exercise such control; and that the intent included delivery. In addition, the evidence

was more than ample for the jury reasonably to conclude that the Defendant entered

into a conspiracy with Co-Defendant Evaristo to possess the heroin with the intent to

deliver it.

8. Challenging the Weight of the Evidence


              The Defendant also alleges that the verdict was against the weight of the

evidence. This Court notes that a motion for a new trial on grounds that the verdict is

contrary to the weight of the evidence concedes that there is sufficient evidence to

sustain the verdict, but contends that it is against the weight of the evidence.

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

Commonwealth v. Bennett, 827 A.2d 469, 481 (Pa. Super. 2003).          Furthermore, a

challenge that the verdict is against the weight of the evidence requires this Court to

conclude in its discretion that "the verdict is so contrary to the evidence as to shock

one's sense of justice." Lyons, 833 A.2d at 258. Indeed, for a new trial to lie on a

challenge that the verdict is against the weight of the evidence, the evidence must be

so tenuous, vague and uncertain that the verdict shocks the conscience of the court."




                                            l3
Commonwealth v. Shaffer, 722 A.2d 195, 200 (Pa.                Super.   1998). See also

Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003).

                From the evidence recounted above, it is reasonable to have concluded

that the Defendant constructively possessed the heroin by exercising conscious

dominion and control over it, and that he had the intent to exercise such control; and

that the intent included delivery; and that the Defendant entered into a conspiracy

with Co-Defendant Evaristo to possess the heroin with the intent to deliver it.

Accordingly, the Defendant's challenge to the weight of the evidence must fail.

C. Motion to Reconsider and Modify Sentence

                In his Post Sentence Motion, the Defendant asserts that this Court erred in

sentencing the Defendant to an unduly harsh and manifestly excessive sentence. We

cannot agree.

              The Defendant is challenging the discretionary aspects of sentencing.

Commonwealth v. Bishop, 831 A.2d 656, 660 (Pa. Super. 2003). Initially this Court

notes that:

              Sentencing is within the sound discretion of the sentencing
              judge, and that decision will not be disturbed absent an
              abuse of discretion. Commonwealth v. Jones, 418 Pa.
              Super. 93, 613 A.2d 587, 591 (1992)(en bane).             "To
              constitute an abuse of discretion, the sentence imposed
              must either exceed the statutory limits or be manifestly
              excessive." Commonwealth v. Gaddis, 432 Pa. Super. 523,
              639 A.2d 462, 469 (1994).          Nevertheless, sentencing
              guidelines are merely advisory, and the court may, in its
              discretion, sentence outside the guidelines. When a trial
              court deviates from the guidelines, it must state its reasons
              for deviation on the record at the time of sentencing or in a
              contemporaneous written statement. Commonwealth v.
              Lawson, 437 Pa. Super. 521, 650 A.2d 876, 881 .(1994).
              The court must also consider the guidelines as a starting
              point and deviate so as to impose a sentence consistent




                                            14
             with both the public's safety needs and the defendant's
             rehabilitative needs. Id.

Commonwealth v. Shaffer, 722 A.2d 195, 198-199 (Pa. Super.             1998).   If "the

sentencing court proffers reasons indicating that its decision to depart from the

guidelines is not unreasonable," its responsibilities have been fulfilled and the

appellate courts will not disturb the sentence.   Commonwealth v. Gibson, 716 A.2d

1275, 1277 (Pa. Super. 1998).

             In the instant case, the Defendant's sentences imposed were within the

standard range of the sentencing guidelines, and therefore well within the statutory

limits. Therefore, the Defendant's sentence must be evaluated to determine if it was

"manifestly excessive." To do so, the following considerations must be examined:

             In determining whether a sentence is manifestly excessive,
            the appellate court must give great weight to the sentencing
             court's discretion, as he or she is in the best position to
            measure factors such as the nature of the crime, the
            defendant's character, and the defendant's display of
            remorse, defiance, or indifference. Commonwealth v. Ellis,
            700 A.2d 948, 958 (Pa. Super. 1997).               Where an
            excessiveness claim is based on a court's sentencing
            outside the guideline ranges, we look, at a minimum, for an
            indication on the record that the sentencing court
            understood the suggested sentencing range. 42 Pa. C.S.A.
            § 972l(b). When the court so indicates, it may deviate from
            the guidelines, if necessary, to fashion a sentence which
            takes into account the protection of the public, the
            rehabilitative needs of the defendant, the gravity of the
            particular offenses as it relates to the impact on the life of
            the victim and the community, so long as the court also
            states of record the factual basis and specific reasons which
            compelled him to deviate from the guideline range.

Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003) (citations omitted).

            Moreover, "[i]t is well-settled that appeals of discretionary aspects of a

sentence are not reviewable as a matter of right." Commonwealth v. Ladamus, 896




                                          15
 A.2d 592, 595 (Pa. Super. 2006); see also Commonwealth v. Shugars, 895 A.2d 1270,

 1274 (Pa. Super. 2006}; Commonwealth v. McNabb, 819 A.2d 54, 55 {Pa. Super.

 2003). The defendant must demonstrate that a substantial question exists concerning

 the sentence.      Commonwealth v. Lee, 876 A.2d 408, 411 (Pa. Super. 2005}.

 Furthermore, a substantial question requires something more than an allegation that

 the sentences imposed are excessive or harsh. Ladamus, 896 A.2d · at 595.

 Consequently, Defendant's assertion that this Court abused its discretion by imposing

an excessive and harsh sentence fails to present a substantial question to justify a

review of her claim.

             Additionally, even if the merit of the Defendant's sentencing claim were

addressed, Defendant's argument must fail. The Defendant's sentence must initially

be evaluated to determine if there was an abuse of discretion.          Commonwealth v.

Walls, 926 A.2d 957 (Pa. 2007). The standard of review has been explained in the

following manner:

                    Sentencing is a matter vested in the sound discretion of
                    the sentencing judge, and a sentence will not be
                    disturbed on appeal absent a manifest abuse of
                    discretion. In this context, an abuse of discretion is not
                    shown merely by an error in judgment. Rather, the
                    appellant must establish, by reference to the record,
                    that the sentencing court ignored or misapplied the law,
                    exercised its judgment for reasons of partiality,
                    prejudice, bias or ill will, or arrived at a manifestly
                    unreasonable decision.

Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006), citing Commonwealth

v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999)(en bane).

             This Court considered all the required statutory factors in sentencing the

Defendant. Indeed, in imposing the Defendant's sentence, this Court considered the




                                             16
"protection of the public, the gravity of the offense as it relates to the impact on the

victim and the community, the defendant's rehabilitative needs, and the sentencing

guidelines." 42 Pa. C.S.A. § 9721(b); Commonwealth v. Feucht, 955 A.2d 377, 383

(Pa. Super. 2008).

             Prior to sentencing this Court carefully reviewed the Pre-Sentence

Investigation Report prepared on January 17, 2018. Therefore, this Court did not fail

to consider mitigating factors.   Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12

(1988) (holding that where a pre-sentence report exists, there is a presumption that

the sentencing judge was aware of and adequately considered information relevant to

the defendant's character, as well as any mitigating factors}. Indeed, this Court was

cognizant of Defendant's lack of a significant prior record, his employment history, as

well as the facts and circumstances surrounding the within charges.          Using its

discretion, this Court imposed a sentence that was within the standard range of the

guidelines and within the law. Accordingly, the Defendant's argument is baseless and

the Defendant's Post-Sentence Motion to Reconsider and Modify Sentence is denied.

             Based on the foregoing, the Defendant's Post Sentence Motion is denied.




                                         17
