J-S33008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DAMARIS RAMIREZ,

                            Appellant                 No. 1072 MDA 2016


          Appeal from the Judgment of Sentence Entered June 2, 2016
                 In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0002682-2015


BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED JUNE 16, 2017

        Appellant, Damaris Ramirez, appeals from the judgment of sentence of

an aggregate term of 6 to 20 years’ incarceration, imposed after a jury

convicted her of possession with intent to deliver a controlled substance

(PWID) and other drug-related offenses.        On appeal, Appellant challenges

the sufficiency and weight of the evidence to sustain her convictions, as well

as discretionary aspects of her sentence. After careful review, we affirm.

        The trial court summarized the facts of this case, as established at

Appellant’s May 2016 jury trial, as follows:

              Appellant, [c]o-[defendant, Angel Delgado-Melendez,]
        [Delgado-Melendez’s] sixteen year-old biological daughter (the
        “Daughter”), and [Delgado-Melendez’s] eleven year-old son lived
        together at their family home…. On the evening of April 23,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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        2015, the Daughter was at the home with her younger brother.
        Twice, in the course of that evening, Rocky, identified by the
        Daughter as Appellant’s brother, entered and exited the home.
        On both occasions, Rocky went immediately into Appellant’s
        bedroom, closed the door, produced sounds indicative of
        searching through Appellant’s dresser [drawers], and then exited
        the house. During his time at the home, Rocky would say very
        little to the Daughter. Additionally, during his first visit, he
        locked Appellant’s bedroom door and later left the room carrying
        something in his fist.

              After the intrusion, the Daughter decided that she needed
        to secure the premises and seek assistance. Her first step was
        to secure the premises and prevent Rocky from returning. Next,
        she searched through Appellant’s [drawers] and “[after she]
        moved the clothes to the side … [she] found a bag that was
        moved, so … [she] opened the bag and … [she] pulled out two
        bag things and a little thing of powder….” After uncovering the
        substances, using her cellphone, she sent a picture of the
        substances to her Aunt. Later, the Daughter had a discussion
        with her Aunt about the material she discovered. Finally, after
        speaking with [her] Aunt…, the Daughter went to City Hall,
        reported the incident, and at some point returned home.

              Subsequently, the City dispatched Officer Bradley McClure
        to Appellant’s home to conduct a safety check of the premises,
        at the Aunt’s bequest. Seeing the Officer, the Daughter came
        outside to talk. On her own initiative, the Daughter informed the
        Officer that there were drugs in the house. To corroborate her
        allegation, the Daughter showed the Officer a video of the drugs.
        After viewing this video, the Officer relayed the information to
        Sergeant Rodger, who then called the VICE unit and Child and
        Youth Services. A search warrant was applied for and was
        received.

        …

               Acting on the search warrant, Investigator [Darren] Smith,
        along with Sergeant Rodger,[1] Officer McClure, and another
        officer, entered Appellant’s house.      The whole house was
        searched, however items related to the drug trade were only
____________________________________________


1
    No first name was given for Sergeant Rodger.



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      found in Appellant’s and [Delgado-Melendez’s] shared bedroom.
      In terms of drugs, the police found [the] following quantities and
      types of drugs packaged in bulk in Appellant’s and [Delgado-
      Melendez’s] dresser [drawers]: [49.51 grams of cocaine, 15.47
      grams of cocaine, and 4.93 grams of Methamphetamine.]

            Additionally, a spoon, a scale, resealable disposable bags,
      and mail addressed to Appellant were found in the [drawers]
      along with the drugs.       The rest of the bedroom was also
      searched and investigators uncovered a Pepsi box containing a
      bottle of lidocaine and inositol.

            Finally, at trial, Investigator Kevin Hasser, qualified as an
      expert in the drug[] trade, testified that the material found in
      Appellant’s bedroom was indicative of a drug dealer. First,
      Hasser related to the [c]ourt that large bulk quantities of drugs
      tend to indicate that the drugs were for sale, because by
      repackaging and selling the drugs a significant profit could be
      made. Second, Hasser related that the paraphernalia found was
      indicative of a drug dealer trying to maximize her profit and
      reputation.      Specifically, the presence of a spoon for
      apportioning the drugs, the baggies to create ready doses of the
      drugs for resale, and the scale to weigh the drugs all indicated
      that there was a concerted effort to effectively distribute the
      drugs in the intended quantity, which would balance the
      dealers[’] profitability and reputation concerns. Furthermore,
      the presence of lidocaine and inositol were indicative of the
      practice of cutting drugs. Hasser reasoned that due to the
      numbing effect of these substances, a user can be fooled into
      thinking he is consuming higher quality cocaine. It follows, that
      a dealer attempting to maximize profitability would attempt to
      stretch her product, while protecting the reputation of the quality
      of her stock through this deception.              Relying on all
      aforementioned factors, under the totality of the circumstances,
      Hasser was able to conclude that the house had function[ed] as
      a stash house, an integral part of a drug deal operation.

Trial Court Opinion, 9/19/16, at 2-4 (citations to the record omitted).

      Based on this evidence, a jury convicted Appellant of two counts each

of PWID, 35 Pa.C.S. § 780-113(a)(3); conspiracy to commit PWID, 18

Pa.C.S. § 903(a) and 35 Pa.C.S. § 780-113(a)(3); possession of a controlled



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substance, 35 Pa.C.S. § 780-113(a)(16); and conspiracy to commit

possession of a controlled substance, 18 Pa.C.S. § 903(a) and 35 Pa.C.S. §

780-113(a)(16). She was also convicted of single counts of possession of

drug paraphernalia, 35 Pa.C.S. § 780-113(a)(32), and conspiracy to commit

possession of drug paraphernalia, 18 Pa.C.S. § 903(a) and 35 Pa.C.S. § 780-

113(a)(32).   On June 2, 2016, Appellant was sentenced to the aggregate

term of incarceration stated supra.

      Appellant filed a timely post-sentence motion, which was denied on

June 7, 2016. She then filed a timely notice of appeal, and she also timely

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

statement of errors complained of on appeal.       Herein, Appellant presents

two issues for our review:

      A. Whether the evidence was insufficient as a matter of law and
      [whether the verdict was] against the weight of the evidence to
      convict [] Appellant of [PWID] and related charges where there
      was no evidence that [Appellant] participated in drug trafficking
      or had knowledge that drug trafficking was occurring in her
      house?

      B. Whether the trial court abused its discretion by imposing a
      sentence that was manifestly excessive and did not consider the
      Sentencing Code criteria?

Appellant’s Brief at 5 (unnecessary capitalization omitted).

      Within Appellant’s first issue, she presents two separate claims - a

challenge to the sufficiency of the evidence to sustain her convictions, and a

challenge to the weight of the evidence to support the jury’s verdict.

      The distinction between these two challenges is critical. A claim
      challenging the sufficiency of the evidence, if granted, would

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     preclude retrial under the double jeopardy provisions of the Fifth
     Amendment to the United States Constitution, and Article I,
     Section 10 of the Pennsylvania Constitution, whereas a claim
     challenging the weight of the evidence if granted would permit a
     second trial.

            A claim challenging the sufficiency of the evidence is a
     question of law. Evidence will be deemed sufficient to support
     the verdict when it establishes each material element of the
     crime charged and the commission thereof by the accused,
     beyond a reasonable doubt. Where the evidence offered to
     support the verdict is in contradiction to the physical facts, in
     contravention to human experience and the laws of nature, then
     the evidence is insufficient as a matter of law. When reviewing a
     sufficiency claim the court is required to view the evidence in the
     light most favorable to the verdict winner giving the prosecution
     the benefit of all reasonable inferences to be drawn from the
     evidence.

            A motion for new trial on the grounds that the verdict is
     contrary to the weight of the evidence, concedes that there is
     sufficient evidence to sustain the verdict. Thus, the trial court is
     under no obligation to view the evidence in the light most
     favorable to the verdict winner. An allegation 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. A trial judge
     must do more than reassess the credibility of the witnesses and
     allege that he would not have assented to the verdict if he were
     a juror. Trial judges, in reviewing a claim that the verdict is
     against the weight of the evidence do not sit as the thirteenth
     juror. 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.

Commonwealth v. Widmer, 744 A.2d 745, 751–52 (Pa. 2000) (internal

citations, quotation marks, and footnote omitted).

     Here, Appellant presents the same argument in support of both her

sufficiency and weight claims.    Essentially, she maintains that the jury



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should have believed the testimony of Delgado-Melendez’s daughter who,

when asked if Appellant sold drugs, replied, “Not that I know of.” N.T. Trial,

5/23/16-5/24/16, at 151-52. Appellant also argues that the Commonwealth

failed to prove she knew about the drugs, or constructively possessed them,

where the evidence showed that the drugs found in her home were “not

exposed items that were clearly visible.” Appellant’s Brief at 13.

      Appellant’s   arguments    are    wholly   unconvincing.       First,   the

circumstantial evidence was clearly sufficient to demonstrate that Appellant

constructively possessed the drugs and paraphernalia that were recovered

from the bedroom she shared with Delgado-Melendez.

      When contraband is not found on the defendant’s person, the
      Commonwealth must establish “constructive possession,” that is,
      the power to control the contraband and the intent to exercise
      that control. Commonwealth v. Valette, 531 Pa. 384, 613
      A.2d 548 (1992).

      The fact that another person may also have control and access
      does not eliminate the defendant’s constructive possession; two
      actors may have joint control and equal access and thus both
      may constructively possess the contraband. Commonwealth v.
      Mudrick, 510 Pa. 305, 507 A.2d 1212 (1986). As with any other
      element of a crime, constructive possession may be proven by
      circumstantial evidence. Commonwealth v. Macolino, 503 Pa.
      201, 469 A.2d 132 (1983). The requisite knowledge and intent
      may be inferred from examination of the totality of the
      circumstances. Commonwealth v. Thompson, 286 Pa. Super.
      31, 428 A.2d 223 (1981). The fact that the contraband is located
      in an area usually accessible only to the defendant may lead to
      an inference that he placed it there or knew of its presence. Id.

Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa. Super. 1996).




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      In this case, the drugs were found in Appellant’s bedroom. The drugs

and paraphernalia were located in a dresser drawer that also contained

women’s clothing, as well as mail and voter registration cards for both

Appellant and Delgado-Melendez.     N.T. Trial at 174, 176-77.    Additionally,

the “cutting agents” of lidocaine and inositol were found in a closet that also

contained female clothing.    The fact that the drugs, paraphernalia, and

cutting agents were not only located within Appellant’s bedroom, but were

also found in areas where her clothing and mail was stored, was sufficient

circumstantial proof that Appellant constructively possessed those drugs and

paraphernalia.   Moreover, in light of such evidence, the jury was free to

disbelieve any evidence suggesting that Appellant did not sell drugs, such as

the testimony of Delgado-Melendez’s daughter.       See Commonwealth v.

Jones, 874 A.2d 108, 121 (Pa. Super. 2005) (“[T]he [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.”) (citations

omitted).   Finally, we ascertain no abuse of discretion in the trial court’s

rejection of Appellant’s weight-of-the-evidence claim, which is premised on

the same arguments as her challenge to the sufficiency of the evidence.

      Next, Appellant attacks the discretionary aspects of her sentence.

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. Commonwealth v.
      Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
      challenging the discretionary aspects of his sentence must
      invoke this Court’s jurisdiction by satisfying a four-part test:



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        We conduct a four-part analysis to determine: (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.A. § 9781(b).

     Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
     2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006).
     Objections to the discretionary aspects of a sentence are
     generally waived if they are not raised at the sentencing hearing
     or in a motion to modify the                 sentence imposed.
     Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super.
     2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

     The determination of what constitutes a substantial question
     must be evaluated on a case-by-case basis. Commonwealth v.
     Paul, 925 A.2d 825, 828 (Pa. Super. 2007). A substantial
     question exists “only when the appellant advances a colorable
     argument that the sentencing judge’s actions were either: (1)
     inconsistent with a specific provision of the Sentencing Code; or
     (2) contrary to the fundamental norms which underlie the
     sentencing process.” Sierra, supra at 912–13.

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).

     Here, Appellant has met the first three prerequisites for review of her

discretionary aspects of sentencing claims. Therefore, we must next assess

whether her claims constitute substantial questions for our review. In her

Rule 2119(f) statement, Appellant essentially contends that the court failed

to properly weigh mitigating factors when fashioning her sentence.       See

Appellant’s Brief at 6 (stressing that Appellant “had no substantial criminal

record, a strong work and family history” and did not commit a violent



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crime).   Appellant also argues that her sentence is excessive because the

court imposed “each term of imprisonment consecutive to each other.” Id.

This Court has previously concluded that, generally, neither of these

arguments constitutes a substantial question for our review.    See Moury,

992 A.2d at 171 (“An allegation that the sentencing court failed to consider

certain mitigating factors generally does not necessarily raise a substantial

question.”) (citations omitted); id. (“Under 42 Pa.C.S.A. § 9721, the court

has discretion to impose sentences consecutively or concurrently and,

ordinarily, a challenge to this exercise of discretion does not raise a

substantial question.”).   However, more recently, we recognized that “an

excessive sentence claim - in conjunction with an assertion that the court

failed to consider mitigating factors - raises a substantial question.”

Commonwealth v. Swope, 123 A.3d 333, 339 (Pa. Super. 2015) (citation

omitted).    In light of Swope, we will construe Appellant’s claims as

constituting a substantial question for our review.

      Nevertheless, Appellant’s arguments are meritless.         It is well-

established that,

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




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Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)

(citation omitted).

      In the present case, Appellant avers that the court failed to consider

mitigating   circumstances,   yet   the      record   demonstrates   otherwise.

Specifically, the court acknowledged most of the mitigating circumstances

Appellant stresses herein.    See N.T. Sentencing Hearing, 6/2/16, at 9

(court’s acknowledging Appellant’s “many positive qualities … and that she

has been good to her family at every level and that her family deeply cares

about her and she deeply cares about them”); id. at 10 (noting that

Appellant “has no prior record score”). The court also had the benefit of a

presentence report, and Appellant acknowledges that the court imposed

standard range sentences. Thus, we presume that Appellant’s sentence is

“appropriate under the Sentencing Code[,]” and that the “court was aware of

relevant information regarding [Appellant’s] character and weighed those

considerations along with mitigating statutory factors.” Moury, 992 A.2d at

171 (citations and internal quotation marks omitted).

      Additionally, Appellant’s brief assertion that the court’s imposition of

consecutive sentences resulted in “a large sentence for a working mother

with a minor child to serve” is insufficient to demonstrate that the court

acted with “partiality, prejudice, bias or ill will,” or that it “arrived at a

manifestly unreasonable decision.” Shugars, 895 A.2d at 1275.




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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/16/2017




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