J-S79023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 KEVIN OSVALDO CRUZ                      :
                                         :
                   Appellant             :    No. 782 MDA 2018

           Appeal from the Judgment of Sentence April 24, 2018
               In the Court of Common Pleas of York County
           Criminal Division at No(s): CP-67-CR-0000122-2017,
                          CP-67-CR-0002011-2017


BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:                         FILED JANUARY 23, 2019

      Appellant, Kevin Osvaldo Cruz, appeals from the judgment of sentence

entered on April 24, 2018. We affirm.

      On November 27, 2016, Ryan Myers (“Victim”) took his 11-year-old son

to a Baltimore Ravens game. On the way home, Victim purchased heroin from

three individuals in York County.   Victim returned home and injected the

heroin. He collapsed and died the next day.

      To determine who sold Victim the heroin, police organized a controlled

buy between a confidential informant, Michael Grau (“Grau”), and the

individual Victim texted to buy the heroin. Grau called Appellant and arranged

to buy $40.00 worth of heroin. Police drove Grau to the meeting location and

witnessed Appellant and Miguel Ortiz (“Ortiz”) approach Grau. Police then

witnessed a hand-to-hand exchange between Ortiz and Grau. Grau gave the
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police five bags of heroin he received from Ortiz.        When police arrested

Appellant, they recovered from his person a firearm, $460.00 in currency, and

the cellular telephone used to organize the transaction.

        The Commonwealth charged Appellant via two criminal informations

with two counts of delivery of a controlled substance,1 conspiracy to deliver a

controlled substance,2 involuntary manslaughter,3 drug delivery resulting in

death,4 carrying a firearm without a license,5 and recklessly endangering

another person.6      On March 14, 2018, a jury convicted Appellant of these

seven offenses. On April 24, 2018, the trial court sentenced Appellant to an

aggregate term of 9½ to 19 years’ imprisonment.             This timely appeal

followed.7

        Appellant presents three issues for our review:

        1. Whether the evidence was insufficient [to prove] that the
           Appellant delivered heroin to the Victim . . .?



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1   35 P.S. § 780-113(a)(30).

2   18 Pa.C.S.A. § 903, 35 P.S. § 780-113(a)(30).

3   18 Pa.C.S.A. § 2504.

4   18 Pa.C.S.A. § 2506.

5   18 Pa.C.S.A. § 6106(a)(1).

6   18 Pa.C.S.A. § 2705.

7 Appellant and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.

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      2. Whether the evidence was insufficient . . . to establish the
         Victim died as a direct result of the heroin. . . ?

      3. Whether the evidence was insufficient . . . to establish the
         Appellant delivered heroin [to Grau]. . . ?

Appellant’s Brief at 4 (complete capitalization removed).

      All of Appellant’s issues challenge the sufficiency of the evidence. We

review a challenge to the sufficiency of the evidence de novo and our scope

of review is plenary. In the Interest of J.B., 189 A.3d 390, 414 n.24 (Pa.

2018) (citation omitted). In assessing Appellant’s sufficiency challenge, we

must determine “whether, viewing all the evidence admitted at trial in the

light most favorable to the [Commonwealth], there is sufficient evidence to

enable the fact-finder to find every element of the crime beyond a reasonable

doubt.” Commonwealth v. Cramer, 195 A.3d 594, 601 (Pa. Super. 2018)

(cleaned up).     The evidence “need not preclude every possibility of

innocence. . . . The finder of fact while passing upon the credibility of

witnesses and the weight of the evidence produced, is free to believe all, part,

or none of the evidence.” Commonwealth v. Thomas, 194 A.3d 159, 166

(Pa. Super. 2018) (cleaned up).

      In his first issue, Appellant argues that the evidence was insufficient to

show that he delivered heroin to Victim. Appellant’s argument is based on a

misrepresentation of the record.       Appellant contends that Victim’s son

“testified that the individuals he saw with his father were 3-4 black males.”




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Appellant’s Brief at 13, citing N.T., 3/12/18, at 99-101.8 At trial, Victim’s son

was asked, “Were you able to tell if you can recall what color skin [the

individuals] were?” N.T., 3/12/18, at 99. Victim’s son responded “No.” Id.

Victim’s son was then asked if he remembered telling police “that when you

saw your dad exit the store [] that there were three to four black males with

him?” Id. at 101. Victim’s son responded “I do not recall that.” Id. Hence,

contrary to Appellant’s representation of the record, Victim’s son testified that

he was unsure of the race of the three individuals that sold Victim the heroin.

        As noted above, police recovered Victim’s cellular telephone after his

death and arranged to meet with the person that Victim texted to obtain

heroin the night of the Ravens game.             Grau then met with this person to

complete a drug transaction.            Appellant was that person.     This strong

circumstantial evidence was sufficient to prove that Appellant delivered the

heroin to Victim. Appellant is therefore not entitled to relief on his first claim

of error.

        In his second issue, Appellant argues that the evidence was insufficient

to prove that Victim died due to a heroin overdose. This argument is without

merit. At trial, Dr. Barbara Bollinger, a forensic pathologist who performed

Victim’s autopsy, testified that Victim died as a result of a heroin overdose.

N.T., 3/13/18, at 224. Nonetheless, Appellant argues that Victim could have



____________________________________________


8   Appellant is Hispanic and not African-American.

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died as a result of natural causes.    He cites to portions of Dr. Bollinger’s

testimony in which she details many of Victim’s health problems uncovered

during the autopsy.      Notwithstanding these other health problems, Dr.

Bollinger testified that Victim died as a result of a heroin overdose. As noted

above, we must view the evidence in the light most favorable to the

Commonwealth when assessing the sufficiency of the evidence. In this case,

Dr. Bollinger’s testimony, together with the autopsy report and supplemental

autopsy report detailing the toxicology results, was sufficient to show that

Victim died as a result of a heroin overdose and Appellant is not entitled to

relief on his second issue.

      In his final issue, Appellant argues that the evidence was insufficient to

prove that he delivered heroin to Grau. Appellant relies on the fact that police

witnessed a hand-to-hand transaction only between Ortiz and Appellant. This

argument fails, however, because there was sufficient evidence to convict

Appellant under a theory of accomplice liability.        “A person is legally

accountable for the conduct of another person when[] . . . he is an accomplice

of such other person in the commission of the offense.”           18 Pa.C.S.A.

§ 306(b)(3). One manner an individual can be an accomplice is if he “aids or

agrees or attempts to aid such other person in planning or committing [an

offense.]” 18 Pa.C.S.A. § 306(c)(1)(ii); see Commonwealth v. Gross, 101

A.3d 28, 35 (Pa. 2014) (citation omitted) (“An actor and his accomplice share

equal responsibility for the criminal act if the accomplice acts with the intent


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of promoting or facilitating the commission of an offense and agrees or aids

or attempts to aid such other person in either the planning or the commission

of the offense.”).

       In this case, the evidence was sufficient to show that Appellant aided

Ortiz in delivering heroin to Grau.            When Grau called to set up the drug

transaction, he recognized Appellant’s voice. Immediately after Grau received

the heroin, Appellant was found in possession of the cellular telephone Grau

called to set up the drug transaction. Appellant and Ortiz met Grau together

and the $40.00 in marked currency used to complete the drug transaction was

found on Ortiz’s person after the transaction occurred. This overwhelming

evidence proved that Appellant was an accomplice to Ortiz delivering heroin

to Appellant. Hence, Appellant was liable for delivery under section 306 and

there was sufficient evidence to convict Appellant of delivery of a controlled

substance for the controlled buy.9

       Judgment of sentence affirmed.




____________________________________________


9 As we conclude that the evidence was sufficient to convict Appellant under
an accomplice liability theory, we need not address the Commonwealth’s
argument that the evidence was also sufficient to convict Appellant for being
an actor.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/23/2019




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