J. S52007/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :       IN THE SUPERIOR COURT OF
                                            :             PENNSYLVANIA
                      v.                    :
                                            :
DANILO DeJESUS,                             :          No. 2089 EDA 2015
                                            :
                            Appellant       :


               Appeal from the Judgment of Sentence, June 23, 2015,
                  in the Court of Common Pleas of Lehigh County
                 Criminal Division at No. CP-39-CR-0004319-2014


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED AUGUST 03, 2016

        Danilo DeJesus appeals from the June 23, 2015 aggregate judgment of

sentence of 5 years’ and 10 months’ to 20 years’ imprisonment imposed

after a jury found him guilty of two counts of possession with intent to

deliver    a   controlled   substance   (“PWID”),    possession   of   a   controlled

substance, and criminal conspiracy.1 After careful review, we affirm.

        The trial court summarized the relevant facts of this case as follows:

                     On August 4, 2014, around 11:00 [p.m.],
               members of the Allentown Police Department’s Vice
               and Intelligence Unit were conducting a drug
               investigation in the area of American Parkway and
               Hamilton Street in Allentown, Pennsylvania.         A
               confidential informant (CI) advised officers that two
               males in a silver Dodge Magnum were bringing a

* Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. §§ 780-113(a)(30), (a)(16), and 18 Pa.C.S.A. § 903, respectively.
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            large quantity of heroin into Allentown from
            Philadelphia. The CI provided reliable information on
            previous occasions, which led to numerous arrests.
            The CI provided a description of the two males to
            [Detective Evan] Weaver: One was described as a
            bald Dominican with facial hair named Danny, and
            the other was described as a stocky Hispanic with
            dark hair and facial hair.

                  Officers observed a silver Dodge Magnum and
            a black Toyota Camry parked next to each other in
            front of a club at the American Parkway plaza.
            These were the only two vehicles in that part of the
            lot. There were several children running back and
            forth between the two vehicles. Across the street at
            a bus terminal, officers observed two males
            matching the descriptions given by the CI. The men,
            later identified as [appellant], and co-defendant
            Josue [Massa] were watching the two vehicles across
            the street and were talking on the phone. Both
            vehicles were registered out of Philadelphia. The
            Magnum was registered to Joseline Coss, [Messa’s]
            wife, and the Camry was registered to co-defendant
            Pablo Maya-Rodriguez and an unidentified female.

                  [Appellant] and [Massa] walked back across
            the street to the Magnum, and [Massa] entered the
            front passenger side and [appellant] entered the rear
            passenger area. Ms. Coss was in the driver[’s] seat
            of the Magnum and Maya-Rodriguez was in the
            driver’s seat of the Camry. Officers approached the
            vehicles and spoke with the occupants.          Maya-
            Rodriguez and Coss both signed a consent to search
            form for their respective vehicle[s].      Inside the
            Magnum, officers located a small, black digital scale.
            Inside the trunk of the Camry, officers located a gym
            bag containing approximately 500 grams of heroin
            and approximately 100 grams of cocaine.

Trial court opinion, 9/22/15 at 1-3.

      On November 12, 2014, appellant was charged with multiple counts of

PWID, possession of a controlled substance, and criminal conspiracy in


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connection with this incident. Appellant proceeded to a jury trial on May 20,

2015, and was subsequently found guilty of the aforementioned offenses.

On May 22, 2015, appellant made an oral motion for a new trial based on

the weight of the evidence, which was denied by the trial court that same

day. On June 23, 2015, appellant was sentenced to an aggregate term of

5 years’ and 10 months’ to 20 years’ imprisonment. Appellant did not file

any post-sentence motions. This timely appeal followed on July 9, 2015.2

        On appeal, appellant raises the following issues for our review:

              1.    DID THE TRIAL COURT ERR IN FAILING TO
                    GRANT [APPELLANT’S] REQUESTED POINT FOR
                    CHARGE NUMBER THREE:      []EVEN IF THE
                    PROSECUTOR HAS MADE NO PROMISES,
                    EITHER ON THE PRESENT CASE OR IN OTHER
                    PENDING CRIMINAL MATTERS, THE WITNESS
                    MAY HOPE FOR FAVORABLE TREATMENT FROM
                    THE   PROSECUTOR     IF  THE    WITNESS
                    PRESENTLY TESTIFIES IN A WAY THAT IS
                    HELPFUL TO THE PROSECUTION[?]

              2.    WAS THE VERDICT AGAINST THE WEIGHT OF
                    THE  EVIDENCE   FOR   THE   FOLLOWING
                    REASONS:

                    A.   TWO VEHICLES WERE INVOLVED IN
                         THE     ALLEGED    CONTROLLED
                         SUBSTANCE TRANSFER, NEITHER OF
                         WHICH BELONGED TO [APPELLANT]
                         WHO WAS MERELY A PASSENGER IN
                         ONE OF THEM.

                    B.   THERE WAS NO FORENSIC EVIDENCE
                         LINKING   [APPELLANT]  TO   THE
                         CONTROLLED SUBSTANCES SUCH AS
                         FINGERPRINTS OR DNA EVIDENCE.

2
    Appellant and the trial court have complied with Pa.R.A.P. 1925.


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                    C.     THE    CONTROLLED   SUBSTANCES
                           WERE NOT IN PLAIN SIGHT AND
                           THERE   WAS   NO   PROOF  THAT
                           [APPELLANT] EVEN KNEW OF THE
                           EXISTENCE OF THEM.

                    D.     A COMMONWEALTH EXPERT WITNESS
                           TESTIFIED   THAT  CELL   PHONE
                           INFORMATION IS OFTEN EVIDENCE
                           OF     CONTROLLED    SUBSTANCE
                           DEALING. NO SUCH INFORMATION
                           WAS FOUND IN [APPELLANT’S] CELL
                           PHONE.

                    E.     THE EVIDENCE AGAINST [APPELLANT]
                           WAS      MAINLY      ACCOMPLICE
                           TESTIMONY[?]

Appellant’s brief at 4-5.

      Appellant first argues that the trial court erred in denying his request

to give the following jury instruction with regard to the testimony of

Commonwealth witnesses Josue Massa and Pablo Maya-Rodriguez:

             Even if the Prosecutor has made no promises, either
             on the present case or in other pending criminal
             matters, the witness may hope for favorable
             treatment from the prosecutor if the witness
             presently testified in a way that is helpful to the
             Prosecution.

Id. at 11.

      “In reviewing a challenge to the trial court’s refusal to give a specific

jury instruction, it is the function of this Court to determine whether the

record   supports        the   trial   court’s   decision.”   Commonwealth   v.

Buterbaugh, 91 A.3d 1247, 1257 (Pa.Super. 2014), appeal denied, 104



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A.3d 1 (Pa. 2014) (citation omitted). “[A] trial court has broad discretion in

phrasing its instructions, and may choose its own wording so long as the law

is clearly, adequately, and accurately presented to the jury for its

consideration.”   Commonwealth v. Charleston, 94 A.3d 1012, 1021

(Pa.Super. 2014), appeal denied, 104 A.3d 523 (Pa. 2014) (citation

omitted). “A jury charge will be deemed erroneous only if the charge as a

whole is inadequate, not clear or has a tendency to mislead or confuse,

rather than clarify, a material issue.”   Commonwealth v. Sandusky, 77

A.3d 663, 667 (Pa.Super. 2013).

      In the instant matter, the trial court determined that appellant’s

requested instruction was unnecessary in light of its standard jury

instructions on accomplice testimony and credibility.   (Notes of testimony,

5/21/15 at 183-184, 208-210.) At the close of the evidence, the trial court

instructed the jury on accomplice testimony at great length, closely

mirroring Pennsylvania Suggested Standard Criminal Jury Instruction § 4.01.

                   When a Commonwealth witness is an
            accomplice, his or her testimony has to be judged by
            special precautionary rules. Experience shows that
            an accomplice, when caught, may often try to place
            the blame falsely on someone else. He or she may
            testify falsely in the hope of obtaining favorable
            treatment, or for some corrupt or wicked motive. On
            the other hand, an accomplice may be a perfectly
            truthful witness. The special rules that I will give
            you are meant to help you distinguish between
            truthful and false accomplice testimony.

                 In   view     of  the   evidence    of    Pablo
            Maya-Rodriguez     and   Josue   Massa’s    criminal


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            involvement, you must regard them as accomplices
            in the crime charged and apply the special rules to
            their testimony.

                   These are special rules that apply to
            accomplice testimony: First, you should view the
            testimony of an accomplice with disfavor because it
            comes from a corrupt and polluted source; second,
            you should examine the testimony of an accomplice
            closely and accept it only with care and caution;
            third, you should consider whether the testimony of
            an accomplice is supported, in whole or in part, by
            other evidence.

                   Accomplice testimony is more dependable if
            supported by independent evidence. However, even
            if there is no independent supporting evidence, you
            may still find the defendant guilty solely on the basis
            of an accomplice’s testimony if, after using the
            special rules I just told you about, you are satisfied
            beyond a reasonable doubt that the accomplice
            testified truthfully and the defendant is guilty.

Notes of testimony, 5/22/15 at 39-40.

      The record further reflects that the trial court also instructed the jury

on the various factors it should consider when judging the credibility of a

witness, in accordance with Pennsylvania Suggested Standard Criminal Jury

Instruction § 4.17. These factors included whether “the witness ha[s] any

interest in the outcome of the case, bias, prejudice, or other motive that

might affect his testimony.” (Id. at 44.)

      Upon review, we conclude that these instructions provided the jury

with a sufficient framework to consider any possible motives Massa and

Pablo Maya-Rodriguez may have had in testifying for the Commonwealth.

This court has long recognized that “[t]he trial court is not required to give


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every charge that is requested by the parties and its refusal to give a

requested charge does not require reversal unless the appellant was

prejudiced by that refusal.” Commonwealth v. Brown, 911 A.2d 576, 583

(Pa.Super. 2006) (citation omitted), appeal denied, 920 A.2d 830 (Pa.

2007).     Instantly, the trial court’s instructions clearly and accurately set

forth the applicable law and were neither misleading nor confusing to the

jury.    Accordingly, appellant’s claim that the trial court erred in failing to

give his requested charge must fail.

        Appellant next argues the trial court erred in denying his motion

challenging the weight of the evidence.            (Appellant’s brief at 12.)

Specifically, appellant avers the verdict “shocks one’s sense of justice” for

the following reasons:

              Two vehicles were involved in the alleged controlled
              substance transfer, neither of which belonged to
              [appellant] who was merely a passenger in one of
              them.

              There was no forensic evidence linking [appellant] to
              the controlled substances such as fingerprints or
              DNA evidence.

              The controlled substances were not in plain sight and
              there was no proof that [appellant] even knew of the
              existence of them.

              A Commonwealth expert witness testified that cell
              phone information is often evidence of controlled
              substance dealing. No such information was found in
              [appellant’s] cell phone.

              The evidence against       [appellant]   was   mainly
              accomplice testimony.


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Id. at 4-5, 12-13.

     “An allegation that the verdict is against the weight of the evidence is

addressed to the discretion of the trial court.” Commonwealth v. Galvin,

985 A.2d 783, 793 (Pa. 2009), cert. denied, 559 U.S. 1051 (2010) (citation

omitted).

            [W]here 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. Shaffer, 40 A.3d 1250, 1253 (Pa.Super. 2012) (citation

omitted).

            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.

            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[,] [t]he
            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


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            the foundation of reason, as opposed to 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.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations and

emphasis omitted).

      Upon review, we discern no abuse of discretion on the part of the trial

court in rejecting appellant’s weight claim. The record reflects that the jury

in this case was fully aware of the fact that neither vehicle in this case was

owned by appellant, and that there was no forensic evidence linking

appellant to the narcotics found in Maya-Rodriguez’s vehicle.     Rather, the

Commonwealth presented testimony from appellant’s co-conspirators at trial

to support its theory that the drugs in question belonged to appellant.

Specifically, Massa testified that he and Maya-Rodriguez met up with

appellant and agreed to drive him to Allentown to sell narcotics to an

individual named “Peto.”       (Notes of testimony, 5/21/15 at 70-74.)

Maya-Rodriguez further testified that it was appellant who placed the gym

bag later found to contain heroin and cocaine in the trunk of his vehicle, and

this contention was reiterated during the testimony of Detective Weaver.

(Id. at 20-21, 149.) Appellant, on the contrary, testified that the narcotics

found by police did not belong to him. (Id. at 191, 193.)




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      It is well settled that “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.”     Commonwealth v. Caban, 60 A.3d 120,

132 (Pa.Super. 2012), appeal denied, 79 A.3d 1097 (Pa. 2013) (citation

omitted). In the instant matter, the jury evidently found the Commonwealth

witnesses credible and elected not to believe appellant’s version of the

events.   We are precluded from reweighing the evidence and substituting

our judgment for that of the fact-finder.            Clay, 64 A.3d at 1055.

Accordingly, appellant’s weight claim must fail.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/3/2016




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