J-S29043-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JUAN MELENDEZ-PEREZ                        :
                                               :
                       Appellant               :   No. 1086 EDA 2017

           Appeal from the Judgment of Sentence November 2, 2016
      In the Court of Common Pleas of Lehigh County Criminal Division at
                       No(s): CP-39-CR-0000810-2015


BEFORE:      PANELLA, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                             FILED JUNE 1, 2018

       Appellant, Juan Melendez-Perez, appeals from the judgment of sentence

entered in the Court of Common Pleas of Lehigh County, which, sitting as

finder of fact in his non-jury trial, found him guilty of three counts of

Possession with Intent to Deliver a Controlled Substance (“PWID”), three

counts of Possession of a Controlled Substance, and two counts of Criminal

Use of a Communication Facility.1 Sentenced to an aggregate term six to 12

years’ incarceration, Appellant raises alternate challenges to the sufficiency

and the weight of the evidence. We affirm.

       The trial court aptly sets forth the facts and procedural history as

follows:


____________________________________________


1 35 Pa.C.S.A. § 780-115(a)(30), § 780-115(a)(16), and 18 Pa.C.S.A. § 7512,
respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
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     In the spring of 2014, members of the Pennsylvania State Police
     (PSP) Vice and Narcotics Unit were conducting a narcotics
     investigation utilizing a confidential informant (CI).      The CI
     provided Trooper Douglas Rex with the full name, address, and
     description of a male that was known to the CI to be a heroin and
     cocaine supplier. The CI stated the man’s street name was
     “Ralfy”3 and that he resided at 428 Front Street, Allentown, Lehigh
     County, Pennsylvania. With this information, Rex was able to
     obtain a photograph, which he showed to the CI. The CI
     confirmed that was the individual he knew to be the supplier. The
     photograph was of the defendant [hereinafter “Appellant”], Juan
     Melendez-Perez.


     3The record contains various spellings of this nickname, including
     Rafi, Rafy, Raffy, and Ralfy. Appellant testified he has a tattoo on
     his neck of “Ralfy,” so [this decision] uses that spelling for
     consistency.




     On April 11, 2014, at approximately 12:30 p.m., Trooper Rex met
     with the CI. In the trooper’s presence, the CI place[d] a phone
     call to cellular phone number [***-***-****] and arranged the
     purchase of ½ ounce of cocaine for $650.00. The CI arranged to
     meet the supplier in the area of the Polish Club at 446 North Front
     Street in Allentown. Rex searched the CI’s person and vehicle and
     found no money or contraband. Rex supplied the CI with $650.0
     in prerecorded U.S. Currency and then followed the CI to the
     Polish Club.

     Once at the Police Club, Trooper Rex and other PSP troopers set
     up surveillance on the CI’s vehicle. At approximately 1:21 p.m.,
     Rex received a text message from the CI indicating that “Ralfy”
     was walking towards the vehicle. Rex observed the Appellant
     approach the passenger side of the CI’s vehicle and make verbal
     contact with the CI. At approximately 2:15 p.m., two Hispanic
     males arrived in an Acura and pulled behind the CI’s vehicle. The
     Appellant walked away from the CI’s vehicle and met briefly with
     the two Hispanic males behind the Acura. Appellant then walked
     back to the CI’s vehicle and made contact with the CI. Appellant
     then walked away, and the CI drove away. Troopers maintained
     constant surveillance on the CI’s vehicle until Rex met up with the
     CI. The CI provided Rex with a clear, plastic bag containing a

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     white pow[d]er substance, which subsequently tested positive for
     cocaine.4


     4 Lab results from the Pennsylvania State Police showed the
     substance weighed 13.92 grams and tested positive for cocaine.


     On May 15, 2014, at approximately 1:10 p.m., Trooper Rex met
     again with the CI. The CI arranged for the purchase of three
     bundles of heroin from Appellant for $80.00 each. Rex searched
     the CI’s person and vehicle and found no contraband; the CI had
     four $1.00 bills on his person, which were secured by Rex.5 Rex
     provided the CI with $240.000 in prerecorded U.S. Currency. At
     approximately 1:20 p.m., in Rex’s presence, the CI placed a phone
     call to [a different cellular phone number than before], and
     thereafter went to the Polish Club at 446 North Front Street. Rex
     and other troopers followed and set up surveillance. At 1:36 p.m.,
     Appellant arrived at the Polish Club and entered the front
     passenger seat of the CI’s vehicle. A few minutes later, Appellant
     exited the vehicle and subsequently entered 428 North Front
     Street. The CI drove away and met with Rex. The CI provided
     Rex with three bundles of suspected heroin.          Each bundle
     contained 10 white envelopes stamped with a picture of a baseball
     and the words “Home Run,” held together by yellow and red
     rubber bands. The substance later tested positive for heroin.6


     5   The bills were returned to the CI following the controlled buy.

     6 Lab results from the Pennsylvania State Police showed the
     substance weighed .69 grams and tested positive for heroin.


     On July 2, 2014, at approximately 1:15 p.m., Trooper Rex
     contacted the CI again in order to purchase two bundles of heroin
     from Appellant. Rex searched the CI’s person and vehicle and
     found no money and contraband. Rex provided the CI with
     $160.00 in prerecorded U.S. Currency. Based on information
     received by the CI, the location of this buy was arranged for the
     area of 831 North Jordan Street. Rex and other troopers set up
     surveillance in that area. At approximately 1:30 p.m., the CI
     arrived and parked in front of 831 North Jordan Street. A few


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      minutes later, Appellant exited the front door of the residence at
      831 North Jordan Street and approached the front passenger side
      of the CI’s vehicle. Appellant leaned into the CI’s vehicle for a few
      minutes, then walked back into 831 North Jordan Street.

      At approximately 1:42 p.m., Appellant again exited 831 North
      Jordan Street, approached the driver’s side of the CI’s vehicle, and
      leaned into the vehicle for about 10 seconds. Appellant then
      walked north on North Jordan Street and the CI drove away. Rex
      met with the CI, and the CI provided Rex with two bundles of
      suspected heroin, each containing 10 individual envelopes
      stamped with purple and red stars, which later tested positive for
      heroin.7


      7 Lab results from the Pennsylvania State Police showed the
      substance weighed .71 grams and tested positive for heroin.


      At trial, Appellant testified that he [was unfamiliar with one cell
      phone number the CI called to arrange a buy,] and that [the other
      number] was his brother’s cell phone number. He also testified
      that people often confuse him for his brother.

Trial Court Opinion, 6/2/17, at 1-4.

      As noted above, the court found Appellant guilty on all counts and

sentenced him to an aggregate term of imprisonment of 6 to 12 years.

Appellant filed timely post-sentence motions challenging his verdict as against

the weight of the evidence and contending his sentence was excessive. The

trial court denied these motions on February 28, 2017. This timely appeal

followed.

      Appellant presents the following questions for our consideration:

      I.    WHETHER THE EVIDENCE WAS SUFFICIENT TO SUSTAIN
            [APPELLANT’S] CONVICTIONS FOR POSSESSION WITH
            INTENT   TO   DELIVER  AND  CRIMINAL  USE   OF
            COMMUNICATION FACILITY?


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      II.   WAS THE VERDICT AGAINST THE WEIGHT OF ALL THE
            EVIDENCE IN REGARDS TO THE PROOF OF WHETHER OR
            NOT [APPELLANT] WAS PROPERLY CONVICTED OF
            POSSESSION WITH INTENT TO DELIVER AND CRIMINAL
            USE  OF   COMMUNICATION     FACILITY   WHEN   THE
            COMMONWEALTH FAILED TO HAVE THE CONFIDENTIAL
            INFORMANT     TESTIFY     ABOUT      [APPELLANT’S]
            INVOLVEMENT IN THE ALLEGED OFFENSES?

Appellant’s brief at 10.

      Appellant’s first issue on appeal is a challenge to the sufficiency of the

evidence. Our review of a sufficiency claim is well-settled:

      “When reviewing the sufficiency of the evidence, an appellate
      court must determine whether the evidence, and all reasonable
      inferences deducible from that, viewed in the light most favorable
      to the Commonwealth as verdict winner, are sufficient to establish
      all of the elements of the offense beyond a reasonable doubt.”
      Commonwealth v. Weiss, 565 Pa. 504, 776 A.2d 958, 963
      (2001), cert. denied, 535 U.S. 1101, 122 S.Ct. 2303, 152
      L.Ed.2d 1059 (2002). It [is] incumbent upon the Superior Court
      to consider all of the evidence introduced at the time of trial, and
      apparently believed by the fact finder[.]        “In applying this
      standard, [the reviewing court must] bear in mind that: the
      Commonwealth may sustain its burden by means of wholly
      circumstantial evidence; the entire trial record should be
      evaluated and all evidence received considered, whether or not
      the trial court's ruling thereon were correct; and the trier of fact,
      while passing upon the credibility of witnesses and the weight of
      the proof, is free to believe all, part, or none of the evidence.”
      Commonwealth v. Watkins, 577 Pa. 194, 843 A.2d 1203, 1211
      (2003).

Commonwealth v. Ratsamy, 934 A.2d 1233, 1237 (Pa. 2007).

      Appellant centers his sufficiency issue claim on the Commonwealth’s

alleged failure to establish the identity of the man with whom the CI

transacted on the dates in question. Specifically, because the CI did not testify

at trial, Appellant argues, the Commonwealth relied solely on circumstantial

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evidence that was inadequate to prove Appellant was the person who made

arrangements with the CI by cell phone and later carried out the transactions

as planned. We disagree.

      At trial, PSP Trooper Rex testified that he personally observed the CI

engage in drug transactions with the same man on four separate occasions,

three of which formed the basis for the charges at issue, and the trooper was

“absolutely positive” that man was Appellant. N.T. 8/5/16 at 74-75, 79-82.

As noted above, Trooper Rex described in detail the procedures he followed in

commencing the investigation, which included ascertaining from the CI

Appellant’s name and address, obtaining a photograph of Appellant based on

such information, and gaining the CI’s confirmation that the photograph

depicted the man with whom he transacted. During each surveillance, Trooper

Rex would compare the dealer to the photograph, and he testified he had

“absolutely no doubt” he was watching Appellant each time. N.T. at 80, 82.

      With regard to Appellant’s main point of contention in both this issue

and the next, we note there is no requirement that the CI testify at trial, or

that the Commonwealth provide an electronic recording of the transaction.

See Commonwealth v. Watson, 69 A.3d 605, 607 (Pa. Super. 2013) (“The

Commonwealth enjoys a qualified privilege to withhold the identity of a

confidential source.”) (quotation omitted).      Here, an experienced trooper

specifically trained to make identifications in the field testified with certainty

that he observed Appellant supply the CI with heroin on four separate




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controlled buys.2 As such, we find this evidence, along with the totality of

evidence presented by the Commonwealth, was sufficient for the fact-finder

to find Appellant guilty of all possession and PWID charges.

       With   respect     to   Appellant’s     convictions   for   criminal   use   of   a

communications facility, he argues he “was never identified as being on the

phone with the [CI] for any of the three phone calls that led to the three drug

transactions.     The Commonwealth presented no significant evidence that

directly tied [Appellant] to those phones or to their specific usage during the

conversations [in question].” Appellant’s brief, at 18.

       Section 7512(a) of the Crimes Code provides in relevant part “[a] person

commits a felony of the third degree if that person uses a communication

facility to commit, cause or facilitate the commission or the attempt thereof

of any crime which constitutes a felony under this title or under the act of April

14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device

and Cosmetic Act.” 18 Pa.C.S.A. § 7512(a) (footnote omitted).                  Thus, to

sustain a conviction under Section 7512, the Commonwealth must establish

beyond a reasonable doubt that

       Appellants knowingly and intentionally used a communication
       facility; (2) Appellants knowingly, intentionally or recklessly
       facilitated an underlying felony; and (3) the underlying felony
       occurred.... Facilitation has been defined as “any use of a
       communication facility that makes easier the commission of the
       underlying felony.
____________________________________________


2 To the extent Appellant argues that people often confuse him and his
brother, with whom he claims to share a strong resemblance, this argument
goes not to the sufficiency of the evidence but to its weight.

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Commonwealth v. Moss, 852 A.2d 374, 382 (Pa.Super. 2004) (citations

omitted).

      According to the testimony of Trooper Rex, he watched the CI make

phone calls to arrange two buys, the CI confirmed he had just spoken to

Appellant to set up the buy, the buy took place between the CI and Appellant

as planned, and the CI handed the drugs to Trooper Rex afterward.

Regardless of whether the CI called a cellphone belonging to Appellant or

someone else, the evidence established that Appellant used the cellphone

communications to facilitate two buys. Viewing the evidence in a light most

favorable to the Commonwealth as verdict winner, this evidence sufficed to

prove each element of Section 7512(a) beyond a reasonable doubt.

      In Appellant’s second issue, he argues that guilty verdicts on both

counts under Section 7512(a) went against the weight of the evidence, as

authorities neither heard nor spoke to the individual whom the CI called, and

neither phone number was directly linked to Appellant. Instead, one number

was unknown and the other belonged to his brother, whom, Appellant testified

at trial, people often mistook for him.

             A motion for a new trial based on a claim that the verdict is
      against the weight of the evidence is addressed to the discretion
      of the trial court. A new trial should not be granted because of a
      mere conflict in the testimony or because the judge on the same
      facts would have arrived at a different conclusion. Rather, the
      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. It has often been stated that a new trial should be
      awarded when the jury's verdict is so contrary to the evidence as


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      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. Clay, 64 A.3d 1049, 1054–1055 (Pa. 2013) (internal

quotation marks and citations omitted).

      Our Supreme Court has further clarified that an appellate court's

standard of review when presented with a weight of the evidence claim is

distinct from the standard of review applied by the trial court:

            Appellate review of a weight claim is a review of the
            exercise of discretion, not of the underlying question
            of whether the verdict is against the weight of the
            evidence.     Because the trial judge has had the
            opportunity to hear and see the evidence presented,
            an appellate court will give the gravest consideration
            to the findings and reasons advanced by the trial
            judge when reviewing a trial court's determination
            that the verdict is against the weight of the evidence.
            One of the least assailable reasons for granting or
            denying a new trial is the lower court's conviction that
            the verdict was or was not against the weight of the
            evidence and that a new trial should be granted in the
            interest of justice.

      [Commonwealth v. Widmar, 744 A.2d 745, 753 (Pa. 2000)]
      (emphasis added).

      This does not mean that the exercise of discretion by the trial court
      in granting or denying a motion for a new trial based on a
      challenge to the weight of the evidence is unfettered.             In
      describing the limits of a trial court's discretion, we have
      explained:

            The term “discretion” imports the exercise of
            judgment, wisdom and skill so as to reach a
            dispassionate conclusion within the framework of the
            law, and is not exercised for the purpose of giving
            effect to the will of the judge. Discretion must be
            exercised on the foundation of reason, as opposed to


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              prejudice, personal motivations, caprice or arbitrary
              actions. Discretion is abused where the course
              pursued represents not merely an error of judgment,
              but where the judgment is manifestly unreasonable or
              where the law is not applied or where the record
              shows that the action is a result of partiality,
              prejudice, bias or ill-will.

      [Id.]

Clay, supra (some internal citations omitted).

      In denying Appellant’s post-sentence motion for a new trial based on

the weight of the evidence, the trial court noted the following:

      [Appellant] has not identified exactly what evidence should have
      been afforded greater weight. However, based on his trial
      testimony, it appears [Appellant] takes issue with Trooper Rex’s
      identification of him, and with the fact that the cellphone numbers
      were not specifically linked to him. First, Trooper Rex positively
      identified [Appellant] as the individual that met with the CI on
      three occasions, and I find his testimony to be credible. Second,
      the CI placed phone calls to the cellphone numbers in question
      and arranged for the purchase of specific quantities of narcotics,
      for a specific cost, and at a specific location. Following the calls,
      [Appellant] was the only individual to meet with the CI at the
      specified location, and the CI was provided with the specified
      quantities of narcotics for the specified amount of cash. It can
      certainly be inferred that [Appellant] was the person receiving the
      phone calls.

Trial Court Opinion, at 6.

      After careful review of the certified record, we conclude the trial court

did not abuse its discretion in denying Appellant’s motion for a new trial. The

trial court, sitting as finder of fact, was free to find Trooper Rex’s testimony

credible and Appellant’s testimony incredible with respect to the issue of the

supplier’s identity. See Commonwealth v. Sanchez, 34 A.3d 24, 26–27

(Pa. 2011) (stating, “[t]he finder of fact ... the jury—exclusively weighs the

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evidence, assesses the credibility of witnesses, and may choose to believe all,

part, or none of the evidence[ ]”). Under our standard of review, we may not

substitute our judgment for that of the fact-finder.      Commonwealth v.

Sinnott, 30 A.3d 1105, 1110 (Pa. 2011). Therefore, discerning nothing in

the verdict that shocks one’s sense of justice, we conclude Appellant’s weight

of the evidence claim devoid of merit.

     Judgment of sentence is affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/1/18




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