J-S26014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                                                 :
                v.                               :
                                                 :
                                                 :
    DAMIEN RAMIREZ                               :
                                                 :
                       Appellant                 :   No. 1664 EDA 2018

              Appeal from the Judgment of Sentence April 5, 2018
             In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0000808-2017


BEFORE:      PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI, J.*

MEMORANDUM BY PANELLA, P.J.:                         FILED SEPTEMBER 13, 2019

       Appellant, Damien Ramirez, challenges the judgment of sentence

entered in Montgomery County Court of Common Pleas, following his

convictions for possession of heroin with intent to deliver, possession of

heroin, and possession of drug paraphernalia.1 Ramirez contests the

admissibility of video evidence and photographs derived from the video, and

the Commonwealth’s comments during closing argument. After careful review,

we affirm.

       In 2013, Detective          Michael     Markovich of   the   Pottstown Police

Department arranged for a controlled buy with a confidential informant (“CI”).

Markovich provided the CI with $20 to purchase heroin and a handheld camera
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* Retired Senior Judge assigned to the Superior Court.
1 35 Pa. C.S.A. §§ 780-113(a)(3), 780-113(a)(16), and 780-113(a)(32),
respectively.
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to record the transaction. Markovich then drove to the location of the

controlled buy and observed Ramirez selling heroin to the CI.

       At trial, the jury found Ramirez guilty of all charges. Based upon

Ramirez’s post-verdict motion for acquittal, the trial court found him not guilty

of one count (out of two) of possession of a controlled substance and not guilty

of one count (out of two) of drug paraphernalia. The court then sentenced

Ramirez to 22-44 months’ incarceration, followed by 5 years’ probation, for

possession and possession with intent to deliver.2 The court also sentenced

him to 1-year probation, from the date of sentencing, for possession of drug

paraphernalia. Thereafter, Ramirez filed a post-sentence motion, which was

denied. This timely appeal followed.

       As an initial matter, we must address the deficiencies in Ramirez’s

appellate brief. Every appellate brief must conform to the fundamental

requirements of the rules of appellate procedure. See Commonwealth v.

Perez, 93 A.3d 829, 837 (Pa. 2014). Consequently, an appellant’s claims are

waived if they fail to contain developed argument or citation to supporting

authorities and the record. See Branch Banking and Trust v. Gesiorski,

904 A.2d 939, 942-943 (Pa. Super. 2006).

       In Ramirez’s brief, he argues the following issues in conformity with the

rules of appellate procedure: (1) the video evidence of the controlled buy was

____________________________________________


2 Possession of heroin with intent to deliver and possession of heroin merged
for sentencing.



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inadmissible; (2) the still photographs derived from the video were

inadmissible; and (3) the prosecutor’s comments during closing argument

exceeded the scope of the trial testimony. See Appellant’s Brief, at 8, 14, 16.3

However, Ramirez also makes additional claims that the Commonwealth failed

to establish the video’s chain of custody and, in closing argument, the

prosecutor bolstered a witness’s credibility. See id, at 13, 16, 17. In contrast,

these claims are without citations to supporting authorities and the record.

Thus, we find that the additional claims are waived. See Perez, 93 A.3d at

837-838.

       Ramirez first challenges the admissibility of the video evidence in his

case. He maintains the Commonwealth did not properly authenticate the

videotape because Detective Markovich, the authenticating witness, did not

observe the CI travel to and from the location of the controlled buy. As such,

Ramirez concludes this Court should reverse the trial court’s decision. We

disagree.

       The admission of evidence is within the sound discretion of the trial

court, and a trial court’s evidentiary rulings will be reversed only upon an

abuse of that discretion. See Commonwealth v. Woodard, 129 A.3d 480,

494 (Pa. 2015). Demonstrative evidence such as a video recording must be

____________________________________________


3 Ramirez technically violates the Rules of Appellate Procedure by presenting
three distinct arguments but only listing two issues presented. See Pa.R.A.P.
2116. We decline to find Ramirez has waived any issue under the
circumstances of this appeal, we remind counsel that the safest course is to
include separate issues for each distinct argument presented.

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properly authenticated to show that it is a fair and accurate representation of

what it is purported to depict. See Commonwealth v. Serge, 896 A.2d 1170,

1177 (Pa. 2006). Therefore, testimony from a witness who observed the event

or transaction is sufficient evidence to authenticate a videotape. See id.; see

also Hon. Daniel J. Anders, Ohlbaum on Pennsylvania Rules of Evidence, §

901.08[5][e] Videotape (2016 ed.).

      Here, as part of the Commonwealth’s case in chief, the prosecutor

introduced a video recording of the controlled buy between the CI and

Ramirez, which the jury viewed. N.T., Trial, 10/17/17, at 37. Having observed

the transaction, Detective Markovich testified as to the contents of the video

recording. See id., at 41. During his testimony, Markovich identified Ramirez

as the man in the video who was wearing a white t-shirt and talking to the CI.

See id., at 43-44.

      Although Markovich stated he did not see the hand-to-hand exchange

of cash for drugs, he did testify that he saw Ramirez holding a bag, which the

CI provided him with after the transaction concluded. See id., at 34-35. That

bag, Markovich testified, contained heroin. See id., at 35. Accordingly, we

find the Commonwealth produced sufficient evidence to authenticate the video

recording of the controlled buy, and the trial court did not abuse its discretion

in admitting the tape into evidence.

      In Ramirez’s next issue, he challenges the Commonwealth’s introduction

of photographs from the videotape of the controlled buy. He argues the photos

derived from the video recording were inadmissible because the trial court did

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not admit them into evidence at trial. See Appellant’s Brief, at 14. Ramirez

concludes the introduction of inadmissible evidence warrants the grant of a

new trial. We disagree.

      As with other types of demonstrative evidence such as photographs, the

admissibility of evidence is within the sound discretion of the trial court. See

Commonwealth v. Christine, 125 A.3d 394, 398 (Pa. 2015). It is not an

abuse of discretion for the trial court to allow video evidence to be presented

in a manner that would help the jury better visualize the events in question.

See Commonwealth v. Brown, 134 A.3d 1097, 1106 (Pa. Super. 2016).

      During closing argument, the Commonwealth sought to focus the jury’s

attention on relevant parts of the transaction between the CI and Ramirez by

using still photographs taken from the video recording. N.T., Trial, 10/18/17,

at 32-33. Because the trial court had already admitted the video recording

into evidence, it was unnecessary for the Commonwealth to authenticate the

still photographs derived from the video. Moreover, the trial court did not

abuse its discretion by allowing the Commonwealth to show the still

photographs in order to help the jury better visualize the controlled buy. See

Brown, 134 A.3d at 1106.

      Finally, Ramirez challenges the Commonwealth’s assertions during

closing argument that a hand-to-hand transaction occurred. Because

Detective Markovich testified he did not actually see an exchange of money

for drugs, Ramirez maintains the Commonwealth’s argument on that point




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exceeded the scope of the trial testimony. See Appellant’s Brief, at 15. We

disagree.

     It is well settled a prosecutor has considerable leeway during his closing

argument to advocate his case, respond to arguments of opposing counsel,

and fairly present the Commonwealth’s version of evidence to the jury. See

Commonwealth v. Cooper, 941 A.2d 655, 668 (Pa. 2007). A prosecutor’s

arguments are fair if supported by the evidence or reasonably inferred

therefrom. See Commonwealth v. Caldwell, 117 A.3d 763, 774 (Pa. Super.

2015). Accordingly, prosecutorial misconduct will not be found where

comments were based upon the evidence or in response to defense

arguments. See Commonwealth v. Judy, 978 A.2d 1015, 1020 (Pa. Super.

2009).

     Here, there is sufficient evidence to infer that a hand-to-hand

transaction occurred between Ramirez and the CI. By his own admission,

Detective Markovich testified he did not directly observe the hand-to-hand

exchange. N.T., Trial, 10/17/17, at 33. However, Markovich testified at trial

that the CI, after meeting with Ramirez, provided him with a bag containing

heroin. See id., at 35. Based upon this fact, the Commonwealth’s argument

that a hand-to-hand transaction took place was reasonably inferred from the

evidence. See Caldwell, 117 A.3d at 774. Any of the identified issues with

Detective Markovich’s testimony presented a question as to the weight, not

sufficiency, of the evidence presented. As a result, the Commonwealth’s

argument in closing did not exceed the scope of the trial testimony.

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     As Ramirez is due no relief on any of his issues, we affirm his judgment

of sentence.

     Judgment of sentence affirmed.

  Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/13/19




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