J-A28035-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    FRANCISCO JAVIER LEMUS,                    :
                                               :
                      Appellant                :   No. 2720 EDA 2016

              Appeal from the Judgment of Sentence July 27, 2016
                In the Court of Common Pleas of Chester County
               Criminal Division at No.: CP-15-CR-0002052-2014

BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.:                              FILED JANUARY 23, 2018

        Appellant, Francisco Javier Lemus, appeals from the Judgment of

Sentence entered by the Chester County Court of Common Pleas following

his convictions after a jury trial of, inter alia, numerous counts of Possession

of a Controlled Substance With Intent to Deliver (“PWID”)1 and related

offenses. After careful review, we affirm.

        The trial court summarized some of the facts as follows:

        On July 9, 2014, the Commonwealth charged Appellant with
        2,443 violations of the Controlled Substance, Drug, Devise and
        Cosmetic Act and other crimes. Evidence at Appellant’s six-day
        trial established that he was an active and crucial participant in a
        Chester County cocaine trafficking organization run by his father.
        Appellant, along with other family members, bought and sold
        cocaine in 2013 and 2014, with Appellant acting as the
        organization’s chief operating officer when his father returned to
        Mexico. On April 18, 2016, a jury found him guilty of 51 counts
____________________________________________


1   35 P.S. § 780-113(a)(30).
J-A28035-17


     of possession with intent to deliver cocaine, 49 counts of criminal
     use of a communication facility, 3 counts of criminal solicitation,
     and one count each of possession of drug paraphernalia, criminal
     conspiracy, corrupt organizations, and dealing in proceeds of
     unlawful activities.

Trial Court Opinion, 3/23/17, at 1-2.     On July 27, 2016, the trial court

sentenced Appellant to an aggregate term of 40 to 80 years’ incarceration.

     On August 24, 2016, Appellant filed a Notice of Appeal. Both Appellant

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

     Appellant presents six issues on appeal:

     I. Whether the trial judge violated the Due Process Clause of the
     state and federal Constitutions when he failed to conduct any
     reasonable investigation into Appellant’s complaints of a
     complete breakdown in the attorney client relationship including
     the claim that the attorney did not allow him to participate in
     jury selection?

     II. Whether the trial judge violated the Due Process Clause of
     the state and federal Constitution when he allowed detective
     Jeremy Rubican, who was qualified as an expert in drug
     trafficking and controlled substances, to testify in a way that
     caused the jury to give his testimony a degree of reliability it did
     not deserve and abdicate its responsibility to make independent
     determinations of fact and instead, rely on his opinion to a
     “reasonable professional certainty” that the combination of
     words and actions of Appellant were consistent with drug
     trafficking?

     III. Whether the trial judge violated the Due Process Clause of
     the state and federal Constitution when he admitted a picture of
     Appellant’s .380 firearm which was legally possessed and had
     absolutely no relationship to the crimes charged in the
     indictment?

     IV. Whether the trial judge violated the state Constitution and
     rule 600 when he denied bail on the theory that no combination
     of conditions other than imprisonment would reasonabl[y] assure
     the safety of the community where Appellant’s crimes involved

                                    -2-
J-A28035-17


       distribution of ounce quantities of cocaine without violence and
       there was no reasonable basis to reject the request for nominal
       bail?

       V. Whether the 40-80 sentence imposed is multiplicitous and
       violates state and federal case law including but not limited to
       Apprendi and Alleyne where the sentencing guidelines link the
       recommended sentence to the weight [of] the drugs distributed?

       VI. Whether the sentence imposed is excessive in violation of the
       fundamental norms underlying the sentencing process?

Appellant’s Brief at 2-3 (capitalization omitted).

Issue 1: Appellant’s Dissatisfaction with Court-Appointed Counsel

       In his first issue, Appellant claims that the trial court erred in failing to

inquire about Appellant’s complaints about his court-appointed counsel and

in failing to appoint new court-appointed counsel based on Appellant’s

complaints. Appellant’s Brief at 8-12. Appellant avers that “[t]he [c]ourt’s

response was to blow him off.” Id. at 9.

       Pa.R.Crim.P 122(C) provides that “[a] motion for change of counsel by

a defendant for whom counsel has been appointed shall not be granted

except for substantial reasons.”        Pa.R.Crim.P. 122(C).      “To satisfy this

standard, a defendant must demonstrate he has an irreconcilable difference

with    counsel    that    precludes     counsel     from    representing     him.”

Commonwealth v. Wright, 961 A.2d 119, 134 (Pa. 2008). “The decision

whether to appoint new counsel lies within the trial court’s sound discretion.”

Id.




                                       -3-
J-A28035-17


      The Honorable James P. MacElree II, sitting as the trial court, has

authored a comprehensive, thorough, and well-reasoned Opinion, citing the

record and relevant case law in addressing Appellant’s claim.         See Trial

Court Opinion, 3/23/17, at 7-8 (describing its efforts to question “Appellant

and counsel about the nature of any conflict” and to resolve any issues, and

concluding that Appellant never followed its instructions to file a formal

motion for change of counsel explaining any unresolved issues and that

Appellant never demonstrated “an irreconcilable difference with counsel” as

required, including during his belated remarks during jury selection). After a

careful review of the parties’ arguments and the record, we discern no abuse

of discretion or error of law. We affirm on the basis of the trial court’s March

23, 2017 Opinion.

Issue 2: Propriety of Expert Testimony

      In his second issue, Appellant challenges a detective’s expert

testimony at trial regarding intercepted cell phone conversations, text

messages, surveillance activity, and the translation of coded language

used in the drug trafficking world. Appellant’s Brief at 12-18. Appellant

contends that the detective, in testifying that he held his expert opinions

to a “reasonable degree of professional certainty[,]” invaded the province

of the jury and that his opinions were improper. Appellant’s Brief at 15,

18.




                                     -4-
J-A28035-17


      The “[a]dmission of evidence is within the sound discretion of the

trial court and will be reversed only upon a showing that the trial court

clearly abused its discretion.” Commonwealth v. Tyson, 119 A.3d 353,

357 (Pa. Super. 2015) (citation and quotation omitted). “Accordingly, a

ruling admitting evidence will not be disturbed on appeal unless that

ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or

ill-will, or such lack of support to be clearly erroneous.” Commonwealth

v. Huggins, 68 A.3d 962, 966 (Pa. Super. 2013) (citations and internal

quotations omitted).

      With regard to       the   admission of expert witness testimony,

Pennsylvania Rule of Evidence 702 provides:

      A witness who is qualified as an expert by knowledge, skill,
      experience, training, or education may testify in the form of an
      opinion or otherwise if:

         (a) the expert’s scientific, technical, or other specialized
         knowledge is beyond that possessed by the average
         layperson;

         (b) the expert’s scientific, technical, or other specialized
         knowledge will help the trier of fact to understand the
         evidence or to determine a fact in issue; and

         (c) the expert’s methodology is generally accepted in the
         relevant field.

Pa.R.E. 702.

      We have previously held that the “standard for qualifying an expert is

a liberal one: the witness need only have a reasonable pretension to

specialized    knowledge   on    a   subject   for   which   expert   testimony   is

                                       -5-
J-A28035-17


admissible.”     Commonwealth v. Kinard, 95 A.3d 279, 288 (Pa. Super.

2014) (en banc) (citation omitted). Further, “[t]he witness’s expertise may

be based on practical, occupational, or other experimental training; it need

not have been gained through academic training alone.” Id. The Comment

to Rule 702 specifically states that “an expert’s opinion must be expressed

with reasonable certainty.” Comment to Pa.R.E. 702.

       This Court has previously upheld the admission of expert testimony

regarding coded language. See, e.g., Kinard, supra at 288-89 (permitting

expert testimony to clarify meaning and intent of oblique and coded

language used in drug context); Commonwealth v. Powell, 171 A.3d 294,

307 (Pa. Super. 2017) (upholding admission of expert testimony regarding

“coded language associated with street culture.”).

       Appellant’s contention with respect to the language the expert

repeated at trial (“reasonable degree of professional certainty”) lacks merit.

Such familiar language about the degree of the expert’s professional

certainty is required in expert opinion testimony. See Pa.R.E. 702. In fact,

the comment to Rule 702 specifically states that “Pa.R.E. 702 does not

change the requirement that an expert’s opinion must be expressed with

reasonable certainty.” Comment to Pa.R.E. 702.2 After careful review, we


____________________________________________


2 Moreover, we note that the trial court provided jury instructions regarding
the expert’s testimony, which explained the jury’s role in determining the
(Footnote Continued Next Page)


                                           -6-
J-A28035-17


conclude the trial court did not abuse its discretion in admitting this expert

testimony regarding coded language.

Issue 3: Photograph of Appellant’s Firearm

   In his third issue, Appellant summarily claims that the trial court erred in

admitting photographs of a legally-owned .380 firearm in his truck because

they were irrelevant, unfairly prejudicial, and inflammatory.            Appellant’s

Brief at 19.

      Appellant has not developed this claim sufficiently so as to enable this

Court to provide meaningful review.            We will not develop Appellant’s issue

for him. Accordingly, this challenge is waived. See Pa.R.A.P. 2119 (setting

forth briefing requirements); Commonwealth v. McDermitt, 66 A.3d 810,

814 (Pa. Super. 2013) (“It is a well settled principle of appellate

jurisprudence that undeveloped claims are waived and unreviewable on

appeal.” (citation omitted)); Commonwealth v. Williams, 732 A.2d 1167,

1175 (Pa. 1999) (recognizing “the unavailability of relief based upon

undeveloped claims for which insufficient arguments are presented on

appeal”).

      Even if the claim were not waived, we would conclude it is without

merit based on the trial court’ analysis. See Trial Court Opinion at 10-11

(concluding that the photographs were not inflammatory, “were relevant to
(Footnote Continued) _______________________

weight and credibility of the expert testimony. N.T. Trial, 4/18/16 (Closing
Arguments and Jury Instructions), at 81-83.



                                          -7-
J-A28035-17


the Commonwealth’s theory that the drugs seized from the residence during

the execution of the search warrant were possessed with the intent to

deliver them, and were properly admitted.”).3 Accordingly, Appellant is not

entitled to relief.

Issue 4: Denial of Nominal Bail Pursuant to Pa.R.Crim.P. 600

       In his fourth issue, Appellant belatedly challenges the trial court’s pre-

trial refusal to release him on nominal bail after 180 days in custody

pursuant to Pa.R.Crim.P. 600(B).               Appellant’s Brief at 19-21.   Appellant

claims this decision was erroneous on the merits, interfered with his ability

to hire private counsel before trial, and “[i]t was clear that the [c]ourt

denied bail as a way of forcing Appellant to enter a guilty plea.” Appellant’s

Brief at 21.

       “Generally, a case will be dismissed if at any stage of the judicial

process it is rendered moot.”         Commonwealth v. Sloan, 907 A.2d 460,

465 (Pa. 2006). A defendant is no longer in pre-trial detention where he is

now serving a sentence following conviction. Id. at 464-65. A Rule 600(B)



____________________________________________


3 See also Commonwealth v. Watley, 81 A.3d 108, 114-15 (Pa. Super.
2013) (observing that the determination of whether a person possesses a
drug with intent to deliver is based upon the totality of circumstances,
including whether police found firearms and ammunition in close proximity
to drugs); In re R.N., 951 A.2d 363, 367 (Pa. Super. 2008) (stating that
the presence of a firearm in close proximity to drugs is a relevant factor in
establishing PWID).



                                           -8-
J-A28035-17


claim regarding pre-trial release on nominal bail is “technically moot” once

the defendant is serving a sentence following conviction. Id.

       Appellant did not immediately appeal the trial court’s pre-trial refusal

to release him on nominal bail after 180 days in custody pursuant to

Pa.R.Crim.P. 600(B).         See Pa.R.A.P. 1762(b)(2) (“Release in Criminal

Matters”); Pa.R.A.P. 1516(a) (regarding petitions for judicial review of

governmental determinations, including bail decisions in criminal matters as

authorized in Pa.R.A.P. 1762).         Appellant is no longer incarcerated in pre-

trial detention; he is now serving a sentence following conviction.         Thus,

Appellant’s claim is moot. Sloan, supra at 468.

Issue 5: Apprendi/Alleyne Illegal Sentence Claim

       In his fifth issue, Appellant claims that the trial court imposed an

illegal sentence because the jury did not make a finding regarding the date

of the charged crimes beyond a reasonable doubt. Appellant’s Brief at 22-

25. Relying on Apprendi v. New Jersey, 530 U.S. 466 (2000), Appellant

claims that the trial court impermissibly increased his maximum punishment

based on a fact that was not submitted to the jury, i.e., the date of each

crime. Appellant’s Brief at 25.4 As a result, Appellant sweepingly proclaims

____________________________________________


4 Insofar as Appellant’s argument implicates the sufficiency of the evidence
for failing to prove the date each crime was committed, or the adequacy of
the indictment and bill of particulars, such claims are waived because they
do not implicate the legality of Appellant’s sentence and he did not otherwise
raise these issues in his appellate Brief. See, e.g., Pa.R.A.P. 2119(a) (“The
(Footnote Continued Next Page)


                                           -9-
J-A28035-17


that “under controlling United States Supreme Court precedent, this

Honorable Court may sentence for one count of [PWID]; one count of

[C]riminal [C]onspiracy; one count of dealing in proceeds of unlawful

activity.” Appellant’s Brief at 26.

      A challenge to the legality of a sentence is a question of law.

Commonwealth v. Wolfe, 106 A.3d 800, 802 (Pa. Super. 2014).

Therefore, this Court’s standard of review is de novo and the scope of review

is plenary.    Id.   “[C]laims pertaining to the legality of sentence are non-

waivable, may be leveled for the first time on appeal, and our jurisdiction

need not be invoked in a Pa.R.A.P. 2119(f) statement.” Commonwealth v.

Foster, 960 A.2d 160, 163 (Pa. Super. 2008) (citation omitted). “In fact,

such a claim is not even waived by a party’s failure to include it in a

Pa.R.A.P. 1925(b) statement.” Id. (citation omitted).

      In Apprendi, the United States Supreme Court determined that

“[o]ther than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.”        Apprendi,

530 U.S. at 490. In Alleyne, the U.S. Supreme Court held that, other than

the fact of a prior conviction, any fact that increases the penalty for a crime


(Footnote Continued) _______________________

argument shall be divided into as many parts as there are questions to be
argued[.]”).



                                         - 10 -
J-A28035-17


beyond the prescribed statutory minimum must be submitted to a jury and

proved beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2162.5

       After careful review, we conclude that Apprendi and Alleyne do not

entitle Appellant to relief.      The date of the offense does not change the

prescribed statutory minimum or maximum sentence. Additionally, there is

no indication in the certified record that the trial court imposed a mandatory

minimum sentence as part of Appellant’s Judgment of Sentence, which could

implicate Alleyne.6      Moreover, even a cursory review of the jury’s verdict

slip shows that the Commonwealth specified the exact dates of each drug

sale, the name of the buyer, and the trial exhibit related to each charge.

See Verdict Slip, dated 4/18/16. Accordingly, Appellant’s illegal sentencing

claims are without merit and he is not entitled to relief.

Issue 6: Discretionary Aspects of Sentence

       In his sixth issue, Appellant avers that his aggregate sentence of 40 to

80 years’ incarceration is excessive based on the Federal Sentencing

Guidelines.    Appellant’s Brief at 27-28.         This implicates the discretionary

aspects of his sentence. See Commonwealth v. Lutes, 793 A.2d 949, 964

____________________________________________


5We observe that Appellant did not include any discussion of Alleyne in this
section of his argument; he only cited Alleyne in the question presented
and again in an unrelated claim challenging the discretionary aspects of his
sentence. See Appellant’s Brief at 21-26.

6 Appellant does not claim he was sentenced to an illegal mandatory
minimum sentence.



                                          - 11 -
J-A28035-17


(Pa. Super. 2002) (stating that an assertion that a sentence is manifestly

excessive challenges the discretionary aspects of sentencing).

      Challenges to the discretionary aspects of sentence are not appealable

as of right.   Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super.

2015).   Rather, an appellant challenging the sentencing court’s discretion

must invoke this Court’s jurisdiction by satisfying a four-part test: “(1)

whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and

903; (2) whether the issue was properly preserved at sentencing or in a

motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3)

whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4)

whether there is a substantial question that the sentence appealed from is

not appropriate under the Sentencing Code, 42 Pa.C.S.[] § 9781(b).”      Id.

(citation omitted).

      Instantly, Appellant has not satisfied these requirements.   Appellant

did not properly preserve this issue at sentencing or in a post-sentence

motion. In his Brief, Appellant relies on his “Petition for Re-Sentencing” to

support his claim that he properly preserved this claim in the lower court.

See Appellant’s Brief at 27.   Our review of Appellant’s Petition shows that

Appellant never mentioned the Federal Sentencing Guidelines or his general

claim of excessiveness in any way. See R.R. at 587-88. Rather, Appellant

merely described his sentence and presented his Alleyne claim.       R.R. at




                                   - 12 -
J-A28035-17


587-88. Thus, Appellant has failed to preserve this issue. See Leatherby,

supra at 83.

      Moreover, we conclude that Appellant has not presented a substantial

question that his sentence is inappropriate under the Sentencing Code. The

determination of whether a particular issue raises a substantial question is to

be evaluated on a case-by-case basis. Commonwealth v. Bishop, 831

A.2d 656, 660 (Pa. Super. 2003).        “In order to establish a substantial

question, the appellant must show actions by the sentencing court

inconsistent with the Sentencing Code or contrary to the fundamental norms

underlying the sentencing process.” Id. “Bald allegations of excessiveness,

unaccompanied by a plausible argument that the sentence imposed violated

a provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing scheme, are insufficient to raise a substantial

question.” Commonwealth v. Lee, 876 A.2d 408, 412 (Pa. Super. 2005).

      In the instant case, Appellant has failed to raise a substantial question.

Appellant failed to include any discussion about whether this issue

constitutes a substantial question or otherwise develop this argument. See

Appellant’s Brief at 27.   The substance of Appellant’s excessiveness claim,

presented entirely in the Pa.R.A.P. 2119(f) Statement, is that his sentence is

excessive when compared to the Federal Sentencing Guidelines.              See




                                    - 13 -
J-A28035-17


Appellant’s Brief at 28.7        The Federal Sentencing Guidelines are wholly

inapplicable and irrelevant to the instant offenses prosecuted in state court

in Pennsylvania.     See, e.g., 204 Pa. Code § 303.1 et seq. (describing the

sentencing guidelines applicable in Pennsylvania).       It is clear from our

precedent that Appellant has failed to raise a substantial question as to his

sentence, and therefore failed to invoke the jurisdiction of this Court. See

Lee, supra at 412 (reiterating that a bald allegation of excessiveness does

not present a substantial question).

       Because Appellant has failed to preserve this issue properly and has

failed to present a substantial question, this Court has no jurisdiction to

review Appellant’s challenge to the discretionary aspects of his sentence.

       The parties are instructed to attach a copy of the trial court’s March

23, 2017 Opinion to all future filings.

       Judgment of Sentence affirmed.




____________________________________________


7 Appellant also repeats his Alleyne claim. See Appellant’s Brief at 28.
Given our resolution of Appellant’s Alleyne claim above, we need not repeat
our analysis of that issue.



                                          - 14 -
J-A28035-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/18




                          - 15 -
                                                                      Circulated 12/29/2017 10:10 AM




 COM�U)NWF:ALTII OF PF.l'iNSYLVANIA : IN THK COURT OF COM.\10N !'LEAS

                                                     CHE:STF.R COU:'<TY, PENNSVLVA�IA
                  v.
                                                     CRIMIJ\i\L ACTION

 FRANCISCO .IA VIER LEMUS                            NO. 2052-2014



                            OP!N!O:'( PURSUA:'<T TO Pa.It.A.I'. 1925{a)

         Francisco Javier Lemus (Appellant) has tiled an appeal to the Superior Court of

Pennsylvania from the judgment of sentence entered agains1 him on July 27, 2016. We write now

pursuant t0 the rnandnce    or Pa.R.A.P. I 92S(a).

         On July 9, 2014, rne Commonwealth charged Appellant with 2,443 violations of the

Controlled Substance, Drug, Devise and Cosmetic Act and other crimes.                 Evidence at

Appcllaru's six-day trial established that he was an active and crucial partfoipant in a Chester

County cocaine trafficking orgenlzarion nm b)' his father. Appellant, along with other family

members, bought and sold cocaine in 2013 and 2014, with Appellant acting as the organization's

chief operating officer when his father returned co Mexico. On April J 8, 2016, a jury found him

guilty of SL counts of possession with intent lo deliver cocaine:.' 49 counts of criminal use of a

communication facili1y/ 3 counts of criminal solicilation;' and one count each of possession of



'JS P.S. § 780-l 13(aXJO)
' 18 Pa.C.S.A. § 7512(a)




                                                                                       I
 drug paraphernalia," criminal conspiracy/ corrupt organi�J)lions,6 and dcatmg in proceeds of

 untawful acuviues.' On July 27. 2016, we sentenced Appellant to serve a              101aJ   term o

 imprisorunenl of 40 10 80 years. This appeal followed.



         Appellant has filed his concise statement of errors complained of on appeal raising eight

 issues. We first address his pre-trial claims.

                                           Pretrial lncar('enttion

         In his first claim. Appellant asserts that we erred in not releasing hi111 on nominal bail

after he had spent 180 days in custody prior to trial. Pursuant to Pa.R.Crim.P. 600(1\)(1),

"Prompt Trial." a defendant generally should not be held in pretrial incarceration in excess of

 180 days from the date on which the complaint is filed.             A defendant held in pretrial

incarceration in excess of 180 days ma)' file a motion for immediate release on nominal bail.

Pa.R.Cri111.P. 600(D)(2). There are certain exceptions to the rule that a defendant held in pretrial

incarceration in excess of 180 days is entiued to bail. One exception was included in the 1998

amendment    10   Article I, Section 14 of Pennsylvania Constinnion. and provides that a prisoner

may be denied bail when a coon determines tha1 "no condition or combination of conditions

other than imprisonment will reasonably assure the safety of any person and the commonity."

Co111111on1,•.a/1h" Sloan, 907 i\.2d 460, 467 (Pa. 2006).


> 18 Pa.C.S.A. § 902
'35 P.S. §780-113(a)(32)
' JS Pa.C.S.A. § 903




                                                  2
          In Commonwealth v. Jones, 899 A.2d 353 {Pa.Super. 2006). the Superior Court aifirrued

 a trial court's dcn..iaJ of nominal bail to a defendant charged with rape, involuntary deviate sexual

 intercourse and other crimes     In denying bail, the trial co1U1 found that the defcndam was a

 dan.ge-r to the conununiry based on the fac.t that he was a fugitive on other rape charges and had

 an extensive prior record.

          In the instant mauer Appellant had no prior record. He was. however, charged \\'ith over

two thousand criminal violations. including hundreds of counts of possession with intent           lo

deliver cocaine. At the February 8> 2016, hearing held on this issue, Detective Jeromy Rubincan,

a full-urne narcotics investigator with the Chester Coumy District Auorneys office, testified

regarding seven "controlled buys," wherein a confidential informam purchased significant

amounts of cocaine directly from Appellant himselr. 1'.T. 218116. p. 18. Derecuvc Rubincan also

testified regarding threats that several potential witnesses bad received since Appellant's arrest.

N. T. 2/8116, Jl· 31.

         After hearing all of the evidence. we determined tha; Appellant's continued incarceration

was necessary to reasonably ensure the safely of other persons and the community. Of particular

concern to the Court was the foct that no condition of bail would ensure th.at Appellant would not

continue to buy aud sell cocaine, thus posing a continuing threat to his community. Accordingly,

his motion was propcrJy denied.




' 18 Pa.C.S.A. § 91 l(b)




                                                 3
•   I




                                              Suppression of Wiretap Evidence

                    Appellant next asserts that we erred when we refused to suppress wiretap evidence,

            claiming that wiretaps were unnecessary because "ordinary investigative methods" had already

            been successful in this case.

                    Pursuant to Pennsylvania's Wiretapping and Electronic Surveillance Control Act, 18

            Pa.C.S.A. §§ 5701-5782, the Commonwealth may apply for authorization to use a wiretap in the

            investigation of a pending matter. 18 Pa.C.S.A. § 571 O(a).      "A condition precedent to the

            issuance of an order authorizing an intercept is a determination by a judge of the Superior Court

        that 'normal investigative procedures with respect to such offense have been tried and have

        failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ ... .'

            18 Pa.C.SA. § 5710(a)(3)." Commonwealth. v. Doty, 498 A.2d 870, 880 (Pa.Super. 1985). In

        making this showing, the Commonwealth is not required to establish that all other investigative

        methods have been exhausted. Id. at 881.

                   At a hearing held on this issue on November 18, 2015, the Commonwealth reiterated to

        this Court its reasons for requesting authorization for a wiretap in the Superior Court. The

        reasons included its failure to place an undercover officer into the Lemus drug organization, its

        prior surveillance and use of an informant in its investigation, and the limited efficacy of a search


        7
            18 Pa.C.S.A. § 511 l(a)(l)




                                                           4                                     1
 warrant, as only a few of the organization's ruuhiple participants had thw far been identified.

 SecN.T.11118/15,pp.26-27.

          [n the instant mauer we found that the Commonwealth had suflicicntly established the

 "ccndiuon precedent" required under section 57 J O(a)(3) of the Wiretap Act, and the suppression

 of wiretap evidence was properly refused. We note here that the "Commonwealth is not required

 10   forego additional investigation into an illegal drug conspiracy merely because ii may already

 possess ... evidence sufflcient to permit prosecution of some of the conspirators."

Commonweallh         1,·.   Dotv, 498 A.2d at 881.

                                                 Knoc:k and Announce

          In h.is next issue, Appellant claims that the Court erred when ii "automaucajly" credited

the testimony of rbe police over civilian vvunesses at a suppression hearing held on his claim that

the Commonwealth violated the "knock and announce" rule when executing a search warrant at

his residence on May l, 20 I 4.

          When executing a search warrant, Jaw enforcement officers are          10   give notice of their

identity, authority, and purpose ro lhe occupants of the premises prior to the officers' entry.

Pa.R.Cl'im.P. Rule 207(A). The police must then await a response for a reasonable period of time

after the above announcement            Pa.R.Crim.P. Rule 207(8). The purpose of the rule is to prevent

injury to the police. and the occupants of the premises. to protect the occupant's privacy

expectations.. and      10   prevent property damage resulting from forced entry. C'ommonweailh v.

t:rcdcr.kl., 124 A.3d 748. 755 (Pa.Super. 2015).




                                                      5
        At a hearing held on Appellant's motion to suppress evidence seized pursuant to this

 search warrant, four witnesses testified. First to testify was Matthew Gordon, who on May I,

2014, was working as a detective in the Chester County District Attorney's Office, and was

assigned to assist in the execution of the search warrant at Appellant's residence. Detective

Gordon testified that prior to the police's entry into the residence he properly "knocked and

announced" himself and the police's purpose, and then waited approximately five seconds. After

Detective Gordon got no response to his knock, he repeated the "knock and announce" protocol

four or five more times prior to entering the residence. N.T. 4/8/16, pp. 16-17. Enrique Garcia,

a Chester County Deputy Sheriff, testified that he was at Appellant's residence to assist with the

execution of the search warrant and, prior to their entry into the home, heard Detective Gordon

knock and announce at least three, and perhaps as many as five times. N.T. 4/8/16, pp. 29-30.

Maria del Carmen Lemus, Appellant's sister, testified that she was in the home at the time of the

execution of the warrant and that she heard no knocking at all prior to the police's entry. N.T.

4/8/16, p. 36. The last witness to testify was Ryan Snyder, an inmate at the Chester County

prison, who shared a holding cell with the Appellant when both were at the Chester County

Justice Center on May I 0, 2014. Mr. Snyder testified that he overheard part of a conversation

between Appellant and Deputy Garcia, part of which was in Spanish, and that from his

"understanding" of the conversation the police did not knock before entering Appellant's home

on May 1, 2014. N.T. 4/8/16, pp. 40-42.




                                               6
         Credibility at a suppression hearing "is an important determination best resolved through

 the court's personal observations."       Commonwealth v. Camacho, 625 A.2d 1242, 1245

 (Pa.Super. 1993). In the instant matter, we found credible the testimony of Matthew Gordon and

 Enrique Garcia, and thus no violation of Rule 207. That fact that our credibility determinations

 did not favor Appellant entitles him to no appellate relief.

                                       Attorney/Client Relationship

         In his next issue on appeal, Appellant claims that we failed to conduct any "reasonable

inquiry" into Appellant's claim of a breakdown in the attorney/client relationship, and his request

for a different court-appointed attorney. Although not specified in his 1925 Statement, we

assume that Appellant is referring to his comments on November 18, 2015, at the end of the

hearing on his omnibus pretrial motion. At that time Appellant informed the court that he was

dissatisfied with his counsel's representation, and that he desired different counsel. N.T.

11/18/15, p. 30. We questioned Appellant and counsel about the nature of any conflict, recessed

the matter for the two to confer, directed that counsel and Appellant discuss and attempt to

resolve any issues, and if necessary, thereafter file a motion for change of counsel. N.T.

11/18/15, pp. 31-35. No such motion was filed prior to trial. On day one of his trial, after the

jury had been sworn, Appellant again expressed his dissatisfaction with his attorney who had,

according to Appellant, failed to ensure the selection of a jury of his "peers." N.T. 4/11/16, pp.

59-61.




                                                  7                                   7
        Pursuant to Pa.R.Crun.P. 122(AX2), counsel shall be appointed to all defendants unable

 to afford counsel.    Appellant's trial counsel, Mark Lieberman, Esquire,               WM   appointed    10


 represent Appcllam on March 13. 2015. aRer Appellant's original counsel was pennitted to

withdraw. Pursuant 10 Pa. R.Crim.P. I 22(C),. a motion by a defendant for a change of court·

appointed counsel shall only be granted for "substantial reasons," "To sa1isry this standard, a

defendant must demonstrate that he has an irreconcilable difference with counsel that precluded

counsel from representing him ." Comm911weyhh v. Wright, 96t A.2d 119, 134 (Pa. 2008). As

Slated previously, no motion for change of counsel was tiled prior to trial, and while Appellant

expressed dissausfaction with counsel, and counsel acknowledged that the anomey/clicm

relationship was problematic, we were presented with no evidence that counsel could not

continue 10 zealously represent Appellant

        We note here that part of Appc11an1's dissatisfaction with his anorncy appeared             10   stem

from his general disdain for court-appointed counsel. See: N.T. 4111116, pp. 60-61. However,

while an indigent defendant is entitled   to   free counsel. "he is not entitled   10   free counsel of his

own choosing." Comnwnwea/til v. Cook, 952 A.2d 594, 617 (Pa. 2008) (quotation omiucd).

Instamly, Appellant failed lo provide any specifics of "irreconcilable differences" with his

attorney that would have necessitated a change of counsel, and no relief is due on this claim.

                                       ,Expert \Vltrl(;§S Tcsumonv

       Appellant DCXt claims that we erred when we permitted Commonwealth witness Jeremy

Rubincan, "to testify in a way Lhat invited the jury 10 abdicate its responsibility 10 ascertain and




                                                                                               y
                                                   8                                           (J
 assess facts and make independent conclusions, and instead, defer to his expert opinion that a

 combination of words and action of Appellant were consistent with drug trafficking."

        Jeremy Rubincan, a detective in the drug and organized crime unit of the Chester County

District Attorney's office, testified at Appellant's trial. Detective Rubincan had over seventeen

years of law enforcement experience, extensive training and experience in narcotics

investigations and was qualified as an expert in the field of drug trafficking and controlled

substances. At trial Detective Rubincan offered expert testimony regarding whether the facts and

circumstances of certain transactions involving Appellant were consistent with narcotics

transactions.   The facts and circumstances that formed the basis of Detective Rubincan's

opinions included his analysis of the contents of intercepted cell phone conversations, text

messages, and surveillance activity, and the translation of coded language, Admission of this

testimony was not error, for expert testimony is admissible to "interpret and explain the use of

code words and the meaning of certain language used in drug trafficking." Commonwealth v.

Riffert, 549 A.2d 566, 576 (Pa.Super. 1988) (quotation omitted).

       In addition, the Court instructed the jury regarding the proper use of expert testimony

during the trial. The jury was instructed that it was to decide what weight to give the expert

testimony, and that it was entirely up to the jury to accept or reject the opinions offered. N.T.

4/13/16, pp. 106-107, 122-124. In that the testimony was properly admitted, and the Superior

Court has held that such testimony does not invade the province of the trier of fact,




                                               9
 Commonwealth r. Viwle, 664 A.2.d 999. 1001 (Pa.Super. 1995), Appellant is entitled to no relief

 on this claim.

                                          Pholugrnph of Firearm

        Appellant next claims that we erred when we permitted the Ccmmonwcanh to show the

jury phoiographs of his .380 caliber firearm.

        On day flve of Appellant's trial Chester County Detective Kenneth Beam testified.

Detective Beam participated as photographer in the execution of the search warrant at

Appellant's home on May I. 20L4. Several of the detective's photographs were shown co the

jury, including photographs of the interior ofa truck, frequently used by Appellant, parked at his

residence on May I, 2014. Photographed on the seat of the truck was Appellam's (legall)•

owned) handgun. Defense. counsel objected to the jury being shown these photographs. claiming

tho.t the picrures were irrelevant, prejudicial, and inflammatory. N.T. 4/l 5/f6, pp. 60·64.

        The admissibility of photographs falls within the discretion of the trial court.

(:alJ.Jf@llWea/Jh v. Luwry, SS A.3d 743, 753 {Pa.Super. 2012). This issue often arises in accident

or homicide trials. where photographs of the victim's body or injuries are offered by the

Commonwealth. When deciding whether to admit a photograph. a court employs a two-step

analysis, iirst considering whether the photograph is "inflammerery."         If so. the court then

considers whether the photograph's cvideruiary value outweighs the likdihood thal the

photograph will improperly inflame the minds and passions of the jury. Id. The term

"inflammatory" has been interpreted by the Superior Court to mean lhai "the photo is so




                                                                                    j()
                                                10
gruesome it would tend to cloud the jury's objective assessment of the guilt or innocence of the

defendant."    Commonwealth v. Funk, 29 A.3d 28, 33 (Pa.Super. 2011).               The proffered

photographs clearly did not meet the definition of inflammatory, were relevant to the

Commonwealth's theory that the drugs seized from the residence during the execution of the

search warrant were possessed with the intent to deliver them, and were properly admitted.

                                               Sentencing

       Appellant's final two claims involve his sentence.        Appellant asserts that the Court

improperly sentenced him based on the quantity of drugs sold, which quantity was not found by

the jury, and that the Court's sentence of 40 to 80 years "was imposed as a penalty for the right

to stand trial." We disagree.

       Sentencing is a matter vested in the sound discretion of the sentencing judge, and a

sentence will not be disturbed absent a manifest abuse of that discretion. Commonwealth v.

Glass, 50 A.3d 720, 727 (Pa.Super. 2012). To establish a manifest abuse of discretion, an

appellant must show 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. Haynes, 125 A.3d 800, 808 (Pa.Super 2015). Such

deference is accorded because it is the sentencing court that is in the best position to review the.

defendant's character and the overall effect and nature of the crimes. Commonwealth v. Cook,

941 A.2d 7, 12 (Pa.Super, 2007). Further, a sentencing court is perceived to be in the "best




                                                                                     J   I
                                                11
 position to determine the proper penahy for a particular offense based upon an evaluation of the

 individual circumstances before it." Commonwealth      v,   Ward. 568 A.2d 1242. 1243 (Pa. 1990).

         Jo the instant matter a jury found Appellant guilty       or   107 separate criminal counts,

 including 51 counts of possession wnh intent to deliver cocaine. Prior to imposing sentence, the

 Court had the benefit of a prescntencc investigation report (]'SI). "When a sentencing court has

 reviewed a presenrcncc investigation report, we presume that ihe court properly considered and

 weighed all relevant factors in fashioning the defendant's sentence."      CommomrcoJth Y. Baker,
 n AJd 652, 663 (Pa.Super. 201l).         In addition, prior to imposing sentence we considered the

 factors set forth in 42 Pa.C.S.A. § 9721 (b), specifically "the protection of the public, the gravity

of the offense as it relates    10   the impact on the victim and the community, the defendant's

rehabiliiative needs, and the scurcncing guidelines." Commonweallh v. Feucht, 955 A2d 377,

383 {Pa.Super. 2008).

        The individual circumstances leading to the sentence imposed included the fsct that

Appellant was second-in-cornmand of his family's drug trafficking operarion, and had. over a

significant period   or time,   provided his community with illegal drugs.        His family's drug

trafficking operation had mulliple participants, and was involved in multiple transactions. \Vhile

we acknowledged Appellant's youth, and tin: fact that his father, as (he head of the enterprise

may be slighily more culpable than Appellant, see: N.T. 7127116, pp. 16-17, we nevertheless

believed then, and believe now. that a lengthy sentence was the only appropriate sentence in this

case.




                                                  12
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                                                                                                          t!

        Appellant's aggregate sentence included no mandatory provision, and on each count
                                                                                                          l
                                                                                                          i


Appellant was sentenced within the guideline range.        However, the Court's did exercise its

discretion to have some of Appellant's sentences run consecutively. Commonwealth v Prisk, 13

A.3d 526, 533 (Pa.Super. 2011). Instantly, Appellant was convicted of over fifty counts of

possession with intent to deliver cocaine. In Commonwealth v. Mouzon, 828 A.2d 1126, 1130

(Pa.Super, 2003), the Superior Court affirmed a trial court's imposition of consecutive sentences,

noting that it had in the past "expressed concern against running sentences concurrently by way

of habit, lest criminals receive 'volume discounts' for their separate criminal acts." The Mouzon

court's words also apply here: "The significant sentence in this case is commensurate with the

significant amount of crime that [Appellant] committed." Id.      Appellant's aggregate sentence

was consistent with the protection of the public, the gravity of Appellant's multiple offenses, and

Appellant's rehabilitative needs. He is entitled to no relief on his challenge to the sentence

imposed.

                                             BY THE COURT:




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