J-S32024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellee

                       v.

JUAN MEDINA

                            Appellant                        No. 1559 EDA 2016


              Appeal from the Judgment of Sentence June 13, 2012
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0009759-2011


BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD, * JJ.

MEMORANDUM BY STABILE, J.:                                    FILED JULY 17, 2017

        Appellant, Juan Medina, appeals from the June 13, 2012 judgment of

sentence entered in the Court of Common Pleas of Philadelphia County (“trial

court”) sentencing him to a term of 7-14 years’ incarceration following his

conviction for possession with intent to deliver a controlled substance

(PWID).1 Upon review, we affirm.

        Briefly, on June 13, 2012, Appellant was convicted of PWID following a

jury trial.   Following multiple reinstatements of his direct appellate rights,

Appellant filed the instant appeal.            The trial court summarized the factual

history of the matter as follows.


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
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            At trial, the Commonwealth first presented the testimony
     of Philadelphia Police Officer Brian Myers. Officer Myers testified
     that, on March 30, 2011, at approximately 5:40 p.m., he was on
     duty with the Narcotics Field Unit, which is responsible for
     investigating illegal sales of narcotics. On this particular date,
     he and his surveillance team were on assignment in the target
     area of North 5th Street and Hunting Park Avenue, specifically to
     investigate street sales of narcotics. From a discreet position at
     the northeast corner of the above intersection, Officer Myers
     observed a Hispanic male wearing a green jacket and blue jeans
     standing on the corner and looking in all directions. A few
     moments later, Appellant, who was wearing a red hat and brown
     jacket emerged from a corner store located one half-black away
     on the southeast corner of Fairhill Street and Hunting Park
     Avenue. Appellant walked eastbound to 5th Street, where he met
     up with the other male and engaged in a brief conversation.
     Appellant then walked back to the corner store on Fairhill Street
     with his right hand in his jacket pocket the entire time. At that
     point, Officer Myers radioed a description of Appellant to his
     backup officers and instructed them to stop Appellant for
     investigation. (See N.T. 06/12/12, pp. 14-20).

            Philadelphia Police Sergeant Robert Friel testified next for
     the Commonwealth. Sergeant Friel testified that, on March 30,
     2011, he was on duty with the Narcotics Field Unit, serving as a
     back-up officer to Officer Myers.       Sergeant Friel observed
     Appellant walking westbound on Hunting Park Avenue, between
     5th and Fairhill Streets, before he entered a store on the corner
     of Fairhill Street and Hunting Park Avenue. Upon receiving
     information from Officer Myers, Sergeant Friel and his partner,
     Officer Coolen, entered the corner store, where they
     encountered Appellant sitting at a table toward the back of the
     store. Sergeant Friel and Officer Coolen approached Appellant
     and announced “Police”, at which time Sergeant Friel observed
     Appellant retrieve a clear plastic bag from his right jacket
     pocket, and discard it onto the floor beneath the table. As
     Officer Coolen tried to get Appellant to stand up, Sergeant Friel
     immediately went under the table and retrieved the bag. He
     testified that, “At that point, [Appellant] started to fight us.”
     Upon detaining Appellant in handcuffs, Sergeant Friel placed the
     bag, which contained a tan substance suspected to be heroin,
     under property receipt, and submitted it to the chemistry lab for
     further analysis. (See N.T. 06/12/12, pp. 36-47).



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            The Commonwealth also presented the testimony of
     Philadelphia Police Officer Antonio Morrone, who testified as an
     expert in the field of packaging and distribution of narcotics.
     Officer Morrone testified that he examined the heroin recovered
     by police, and that based on its size (173 grams) – in addition to
     its purer color (tan) and consistency (grounded and moist) – the
     heroin was possessed with an intent to deliver. Officer Morrone
     explained that, beside never personally encountering a single,
     personal purchase of this size, a user never would purchase 173
     grams of heroin because it would be too expensive (it would cost
     between $8,500 and $13,000) and lose its purity over time
     (more rapidly depending on exposure to light and air). He
     further explained that a heavy user ingests 100 to 130
     milligrams per day, and therefore the 173 grams of heroin
     recovered in this case would last a user 12 to 17 months.
     Moreover, in his experience, users typically purchase only a
     couple small packets at a time, not 737 [(sic)] grams. In fact,
     the only people he had encountered with such an amount were
     at a higher level in the drug distribution chain – i.e., “not a
     regular street dealer, it would be somebody in the higher chain
     of the distribution of heroin.” (See N.T. 06/12/13, [(sic)], pp. 4-
     20).

           [FN2] Both Sergeant Friel and Officer Coolen were in
           plain clothes, with their police badges exposed.
           (See N.T. 06/12/12, pp. 37-38, 49-50).

           [FN3] The Commonwealth introduced via stipulation
           chemical analysis evidence establishing that the item
           recovered by police – one clear bag containing a tan
           powder – tested positive for heroin and weight 173.7
           grams. (See N.T. 06/12/13 [(sic)], p.24).

           [FN4] At the time of trial, Officer Morrone had spent
           28 years with the Philadelphia Police Department, 25
           of which were in the Narcotics Field Unit. In addition
           to undergoing narcotics training with the New York,
           New Jersey and Pennsylvania state police, he spent
           five years working, and undergoing extensive
           narcotics   training,   with     the   Federal   Drug
           Enforcement Agency (DEA), including training on the
           manufacturing of narcotics from plant source to final
           packaged product. Over the course of his career,
           Officer Morrone personally had participated in more


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             than 800 drug arrests. (See N.T. 06/12/13 [(sic)],
             pp. 4-15).

Trial Court Opinion, 8/17/16, at 2-3 (quoting Trial Court Opinion, 3/13/13).

      Appellant raises four issues on appeal, which we repeat verbatim.

      I.     Whetther [(sic)] the trial court abused its discretion by
             improperly admitting Officer Morrone’s testimony as to his
             personal opinion?

      II.    Whether there was sufficient evidence to sustain a
             conviction without evidence of the delivery or transport of
             the drugs in question?

      III.   Whether there was sufficient evidence to sustain a
             conviction without the fact that Appellant possessed the
             drugs in question being proven beyond a reasonable
             doubt?

      IV.    Whether the [trial] court abused its discretion in denying
             Appellant’s objection to closing argument of prosecutor
             based on prosecutorial misconduct[?]

Appellant’s Brief at 9.

      Appellant’s first challenge is to the trial court’s admission of Officer

Morrone’s testimony regarding his opinion about the use of the quantity of

drugs found at the scene.      Officer Morrone was qualified as an expert

witness in the field of packaging and distribution of narcotics. Appellant is

challenging the following testimony by Officer Marrone.

      It’s my personal opinion, I have never seen one purchase this
      large amount, because mostly users that I know, and have
      spoken to several thousands of them, and distributors and
      dealers, would not have this amount. They would just buy a
      couple of bags, a bundle per day. Having this much finger tips,
      my personal opinion, they would abuse it.




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N.T. Jury Trial, 6/13/12 at 14.     The Pennsylvania Rules of Evidence provide

for opinion testimony by expert witnesses. Pa.R.E. 702. “Our standard of

review in cases involving the admission of expert testimony is broad:

‘Generally speaking, the admission of expert testimony is a matter left

largely to the discretion of the trial court, and its rulings thereon will not be

reversed absent an abuse of discretion.’” Commonwealth v. Watson, 945

A.2d 174, 176 (Pa. Super. 2008) (quoting Commonwealth v. Brown, 596

A.2d 840, 842 (Pa. Super. 1991), appeal denied, 616 A.2d 982 (Pa. 1992)

(additional citation omitted)).

       Upon review of the record, Appellant failed to object to this testimony,

thus Appellant failed to preserve the issue for appeal and the issue is

waived.   See Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278,

1288    (Pa.   Super.   2004)     (“It   is   well   established   that   absent   a

contemporaneous objection [to an evidentiary issue,] the issue is not

properly preserved on appeal”) (citations omitted).         Even if the issue was

not waived, we find that the trial court did not abuse its discretion in

admitting the testimony of Officer Morrone as he was qualified as an expert

in the field of packaging and distributing narcotics.          Moreover, the trial

court’s August 17, 2016 opinion adequately addresses the issue. See Trial

Court Opinion, 8/17/16, at 5-10. Thus, Appellant’s claim fails.

       Appellant’s next two issues are challenges to the sufficiency of the

evidence, namely, whether there was evidence of a delivery or transfer of




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the drugs in question and whether Appellant possessed the drugs in

question.

            The standard we apply in reviewing the sufficiency of the
     evidence is whether viewing all the evidence admitted at trial in
     the light most favorable to the verdict winner, there is sufficient
     evidence to enable the fact-finder to find every element of the
     crime beyond a reasonable doubt. In applying the above test,
     we may not weight the evidence and substitute our judgment for
     the fact-finder.     In addition, we note that the facts and
     circumstances established by the Commonwealth need not
     preclude every possibility of innocence. Any doubts regarding a
     defendant’s guilt may be resolved by the fact-finder unless the
     evidence is so weak and inconclusive that as a matter of law no
     probability of fact may be drawn from the combined
     circumstances. The Commonwealth may sustain its burden of
     proving every element of the crime beyond a reasonable doubt
     by means of wholly circumstantial evidence.          Moreover, in
     applying the above test, the entire record must be evaluated and
     all evidence actually received must be considered. Finally, the
     finder of fact while passing upon the credibility of witnesses and
     the weight of the evidence produced, is free to believe all, part
     or none of the evidence.

Commonwealth v. Roberts, 133 A.3d 759, 767 (Pa. Super. 2016) (quoting

Commonwealth v. Brooks, 7 A.3d 852, 856-57 (Pa. Super. 2010)

(citations omitted)). “To sustain a conviction for PWID, ‘the Commonwealth

must prove both the possession of the controlled substance and the intent to

deliver the controlled substance.’”   Id., (quoting Commonwealth v. Lee,

956 A.2d 1024, 1028 (Pa. Super. 2008)).       Upon review, the trial court’s

August 17, 2016 opinion adequately addresses these issues. See Trial Court

Opinion, 8/17/16, at 10-12.    When the officers announced their presence,

Appellant retrieved the bag of heroin from his jacket pocket and threw it on

the floor. Thus, the Commonwealth established possession. Moreover, the

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quantity of drugs, the packaging, the condition, and the circumstances of the

arrest, established     that Appellant intended to       deliver    the   controlled

substance. Thus, Appellant’s claims fails.

        Appellant’s final claim is that the trial court abused its discretion when

it overruled Appellant’s objection, based upon prosecutorial misconduct, to

the Commonwealth’s closing argument.          Specifically, Appellant challenges

the prosecution’s comments “Should we have turned [Appellant], should we

have gone up the chain, try to figure out who this next connection was?

Maybe.      There is only one person in the room who knows whose

[Appellant’s] next connection was, that’s [Appellant.]”            N.T. Jury Trial

6/13/12, at 19-20.      Upon review of the record, the trial court adequately

addressed this issue in its August 17, 2016 opinion.               See Trial Court

Opinion, 8/17/16, at 13-16. Thus, we find that the trial court did not abuse

its discretion in overruling Appellant’s objection.

        In conclusion, we find that Appellant’s claims are waived, or meritless.

Therefore, we affirm the judgment of sentence. We direct that a copy of the

trial court’s August 17, 2016 opinion be attached to any future filings in this

case.

        Judgment of sentence affirmed.




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J-S32024-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/2017




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