J-S94007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

LUIS BERNAL

                            Appellant                 No. 1129 MDA 2016


            Appeal from the Judgment of Sentence January 6, 2016
             In the Court of Common Pleas of Huntingdon County
             Criminal Division at No(s): CP-31-CR-0000615-2014


BEFORE: LAZARUS, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED FEBRUARY 27, 2017

        Luis Bernal appeals from the judgment of sentence imposed in the

Court of Common Pleas of Huntingdon County, after a jury found him guilty

of three counts of possession with intent to deliver a controlled substance

(“PWID”),1 two counts of corrupt organizations,2 and one count each of

conspiracy,3 criminal use of a communication facility4 and dealing in

proceeds of unlawful activities.5 After careful review, we affirm.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
2
    18 Pa.C.S.A. § 911(b)(4).
3
    18 Pa.C.S.A. § 903.
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        The charges in this matter arose after an eighteen-month investigation

conducted by various law enforcement agencies in Huntingdon County. The

investigation was initiated when Huntingdon Borough Police received

complaints that Bernal and his girlfriend, Jacquita Kiernan, had moved to the

area in November 2012 from New York City and were bringing large

quantities of heroin into the area for distribution. Agent Mark Sinisi of the

Office of Attorney General was the lead investigator. Agent Sinisi, with the

assistance of confidential informants, made numerous controlled buys from

Bernal’s distributors. Ultimately, Bernal was arrested on April 28, 2014. He

made two statements to the police.               The first, in the hours immediately

following his arrest, was brief, lasting only forty-five minutes. The second

statement, during which he was represented by counsel, occurred on May

22, 2014, and lasted approximately three hours. The trial court summarized

that interview as follows:

        [Bernal] told Agent Sinisi that he and [Kiernan] moved to
        Huntingdon County from New York City in November, 2012. Ms.
        Kiernan had family in the area, and the couple stayed with them
        until moving to the Comfort Inn in Huntingdon. Subsequently
        they rented a cabin on Snyder’s Run Road[.]

        Almost immediately, [Bernal] began distributing heroin. He told
        Agent Sinisi that initially [Kiernan’s] cousin was selling two (2)
        bundles of heroin for him every two (2) to three (3) days. A
                       _______________________
(Footnote Continued)
4
    18 Pa.C.S.A. § 7512(a).
5
    18 Pa.C.S.A. § 5111(a)(1).




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       bundle is ten (10) stamp size bags containing from .01 to .04
       grams of heroin. [Bernal] charged the cousin [$125] per bundle.
       The cost to [Bernal] at that time, he said, was [$70] per bundle.

       [Bernal] told Agent Sinisi that he obtained the heroin he sold in
       New York. Over the course of the eighteen (18) months that he
       was in business, [Bernal] related that he had several different
       suppliers in New York.       At the beginning he said he was
       obtaining thirty (30) bundles every two (2) weeks. In January,
       2013, and continuing for seven (7) or eight (8) months, a new
       New York supplier increased his volume to fifty (50) bundles
       every two (2) weeks. This source, [Bernal] said, was only
       charging him [$60] a bundle. In Huntingdon at that time a
       bundle sold for as much as [$300]. Bernal related that his
       volume gradually increased, and that he obtained as much as
       ninety (90) bundles every two (2) weeks, and that on his
       birthday, July 5, 2013, he was able to purchase one hundred
       (100) bundles. In the months preceding his arrest, [Bernal] told
       [Agent Sinisi] that he began purchasing raw heroin which he
       would then cut and package in green, stamp size bags.

                                           ...

       During the course of the second interview, [Bernal] gave Agent
       Sinisi two (2) estimates of the gross income from his heroin
       operation. First, he opined that he was taking in [$3,000] every
       two (2) weeks. Later, he said he was grossing [$5,000] every
       two (2) weeks. Agent Sinisi [conservatively] estimated that over
       the course of eighteen (18) months [Bernal] grossed
       [$180,000].

Trial Court Opinion, 6/28/16, at 4-7.

       After a jury trial, Bernal was found guilty of the above crimes on

September 11, 2015. On January 5, 2016, the court sentenced him to an

aggregate term of 16 to 32 years’ imprisonment.6            The trial court denied

Bernal’s post-sentence motions.           On July 12, 2016, Bernal filed a timely
____________________________________________


6
  Bernal was found Recidivism Risk Reduction Incentive (RRRI) eligible.
Accordingly, his aggregate minimum sentence was reduced to 160 months.



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notice of appeal, followed by a court-ordered statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b).

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

      1. Did the trial court commit an error of law in concluding the
      jury pool was not tainted by allowing [Bernal’s] co-defendant to
      plead guilty without providing a cautionary instruction to the jury
      or by selecting a new jury?

      2. Did the trial court commit an error of law by concluding that
      trial counsel was required to make a request for a cautionary
      instruction?

      3. Did the trial court commit an error of law by failing to merge
      charges for sentencing when the Commonwealth consolidated
      charges over a given period to enhance sentence guidelines?

      4. Did the trial court commit an error of law by improperly
      joining this case with [Bernal’s] co-defendant[,] which resulted
      in prejudice to [Bernal] and reduced the number of peremptory
      challenges in selection of a jury?

      5. Did the trial court commit an error of law by denying
      [Bernal’s] pre-trial motion to suppress his two confessions to law
      enforcement?

      6. Did the trial court commit an error of law by determining that
      the offense gravity score for each count of [p]ossession with
      [i]ntent to [d]eliver was a 10 when the evidence presented at
      sentencing failed to reliably establish [Bernal] possessed
      between 50 and 100 grams of heroin in the timeframe
      underlying each count?

Brief of Appellant, at 2-3.

      Bernal’s first two claims involve the trial court’s failure to give the jury

a cautionary instruction regarding his co-defendant’s guilty plea. When jury

selection began, Bernal and Kiernan were slated to be tried together as co-



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defendants, and prospective jurors were informed of this fact.        However,

after the jury was empaneled, but before the commencement of trial,

Kiernan entered a guilty plea. Thus, when the jury returned for trial, Bernal

was the sole remaining defendant.      Bernal asserts that Kiernan’s absence

caused the jury to improperly infer that “if she pled guilty to some offenses,

. . . [Bernal] must have also committed the same offenses.”            Brief of

Appellant, at 9. We conclude that this claim is both waived and meritless.

      It is well settled that issues not raised before the trial court cannot be

advanced for the first time on appeal.      Pa.R.A.P. 302(a).    Indeed, issue

preservation is foundational to proper appellate review and is grounded upon

the principle that a trial court must be given the opportunity to correct its

errors as early as possible. Commonwealth v. Miller, 80 A.3d 806, 811

(Pa. Super. 2013). Accordingly, in order to preserve a claim on appeal, a

party must lodge a timely objection or waive the underlying issue on appeal.

See Commonwealth v. Bryant, 855 A.2d 726, 740 (Pa. 2004) (failure to

lodge a timely objection to complained-of testimony waives any challenge to

that testimony); Commonwealth v. Powell, 956 A.2d 406, 423 (Pa. 2008)

(same as to prosecutorial arguments).         If a party fails to request a

cautionary instruction contemporaneously with objectionable testimony, he

may not complain after trial that such an instruction was warranted.

Commonwealth v. Solano, 906 A.2d 1180, 1191 (Pa. 2006), citing

Commonwealth v. Carpenter, 515 A.2d 531 (Pa. 1986).


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      Here, the following exchange took place just prior to the swearing of

the jury panel as trial commenced:

      THE COURT: And the other thing is, of course, you’ll notice we
      have only one Defendant and you should not concern yourself
      about that. I might say to you your work has been made lighter.
      You’re trying only one case, not two.

      Any reason why this jury should not be sworn?

      [COUNSEL FOR THE COMMONWEALTH]: No, Your Honor.

      THE COURT: Mr. Gingerich?

      [COUNSEL FOR BERNAL]: None, Your Honor.

      (Jury panel was sworn.)

N.T. Trial, 9/8/15, at 7.

      Bernal’s counsel made no request either to dismiss the jury or for a

further cautionary instruction.   Although he asserts that counsel was not

required to request a cautionary instruction and that the trial court was

obliged to issue such a charge sua sponte, Bernal overlooks our Supreme

Court’s decision in Commonwealth v. Boyer, 891 A.2d 1265 (Pa. 2005), in

which the Court found an identical claim waived for failure to preserve it with

a request for a cautionary instruction. Accordingly, Bernal’s claim is waived.

      Even if it were not waived, Bernal’s claim would garner him no relief.

Bernal has failed to demonstrate that he was prejudiced by the trial court’s

actions.   First, the jury was completely unaware that Kiernan was absent

because she had entered a guilty plea, and she was not called as a witness

by either party. Second, the trial court did, in fact, instruct the jury not to



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concern itself with the reasons for Kiernan’s absence.         See N.T. Trial,

9/8/15, at 7. Accordingly, Bernal is not entitled to relief.

       Next, Bernal claims that the trial court erred by failing to merge

charges for sentencing where the Commonwealth opted to break up 17

months of continuing conduct into four separate charges, rather than filing a

single charge.7 As a result, Bernal claims that, instead of one charge with an

offense gravity score of 11, he ended up with four charges with offense

gravity scores of 10, thus exposing him to a significantly longer aggregate

sentence. We conclude that this claim is waived.

       Rule of Appellate Procedure 2119(a) requires a properly developed

argument for each question presented. Commonwealth v. Veon, 109 A.3d

754, 774 (Pa. Super. 2015), appeal granted in part, 121 A.3d 954 (Pa.

2015), and vacated sub nom. Commonwealth v. Veon, 69 MAP 2015 (Pa.

Nov. 22, 2016).       This requires, among other things, a discussion of and

citation to authorities in the appellate brief and the principles for which they

are cited. Id.; see also Pa.R.A.P. 2119(a), (b). Failure to conform to the

Rules of Appellate Procedure results in waiver of the underlying issue. See

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1262 (Pa. Super. 2014)

(en banc).

____________________________________________


7
   Although Bernal frames this as a merger issue in his statement of
questions involved, the claim actually implicates the prosecutorial discretion
of the Commonwealth to decide how to charge a defendant.



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       Here,    Bernal    cites   no   authority   in   support   of   his   argument.

Accordingly, this claim is waived. Moreover, it is meritless.

       [A] prosecutor has the duty to decide what charges should be
       brought against a particular offender and then to prosecute the
       offender according to that law. A prosecutor is vested with
       considerable discretion in deciding who will or will not be
       charged and what they will be charged with. The United States
       Supreme Court . . . has acknowledged that the prosecution
       enjoys considerable discretion in deciding what charges to bring
       against a defendant. Selectivity in the enforcement of criminal
       law is, of course, subject to constitutional constraints.        A
       prosecutor may be influenced by the penalties available upon
       conviction; however, that fact, standing alone, does not give rise
       to a violation of the Equal Protection or Due Process Clauses.

Commonwealth v. McNeal, 120 A.3d 313, 326 (Pa. Super. 2015)

(citations, brackets and punctuation omitted).

       In light of the “vast discretion afforded to prosecutors to decide which

charges to file and pursue against a defendant,” id., we can discern no

abuse of prosecutorial discretion in this case, in which Bernal essentially

seeks a “volume discount” for eighteen months of criminal activity.               This

claim is meritless.

       Next, Bernal claims that the trial court erred by joining this case with

his co-defendant, Kiernan. Bernal claims he was prejudiced by the joinder

because it resulted in his being afforded a reduced number of peremptory

challenges during jury selection.8 This claim is waived for multiple reasons.

____________________________________________


8
  Pursuant to Pa.R.Crim.P. 634, each side in a non-capital felony trial is
entitled to seven peremptory challenges. Pa.R.Crim.P. 634(A)(2). In trials
(Footnote Continued Next Page)


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      Pursuant to Pa.R.Crim.P. 582(B)(1), the Commonwealth is required to

give notice of its intent to join the cases of co-defendants. Once such notice

is received, a defendant may seek severance by including a request in his

omnibus pretrial motion. See Pa.R.Crim.P. 578, comment (“Types of relief

appropriate for the omnibus pretrial motions include the following requests:

. . . (2) for severance and joinder or consolidation[.]”). Failure to include an

issue in a pretrial motion may result in waiver of the claim.              See

Commonwealth v. Groff, 548 A.2d 1237 (Pa. Super. 1988) (failure to raise

statute of limitations defense at first available opportunity resulted in waiver

of issue). Because Bernal did not preserve his severance claim by filing a

pretrial motion for severance, he has waived the issue on appeal.

      Moreover, as noted above with respect to Bernal’s merger claim,

failure to properly develop a claim with citation to authority results in

waiver. Veon, supra. Here, Bernal’s argument on the severance issue is

less than one page in length and contains no citation to authority in support

of his argument. For this additional reason, the claim is waived.

      Next, Bernal asserts that the trial court erred by denying his pre-trial

motion to suppress his two confessions to law enforcement. Bernal argues
                       _______________________
(Footnote Continued)

involving joint defendants, the defendants “shall divide equally among them
that number of peremptory challenges that the defendant charged with the
highest grade of offense would have received if tried separately.”
Pa.R.Crim.P. 634(B)(1). The trial court retains the discretion to increase a
joint defendant’s number of peremptory challenges up to the number he
would have received if tried alone. Pa.R.Crim.P. 634(B)(2).



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that, at the time he gave his first statement to police, he was too intoxicated

to knowingly and intelligently waive his right to counsel.       This claim is

partially waived and wholly meritless.

      Preliminarily, we note that, while the heading of Bernal’s argument

references his objection to the admission of both his statements to law

enforcement, the body of the argument only addresses Bernal’s first

statement.   Accordingly, any claim with regard to his second statement is

waived. See id.

      This Court’s well-settled standard of review of a denial of a motion to

suppress evidence is as follows:

      [We are] limited to determining whether the suppression court’s
      factual findings are supported by the record and whether the
      legal conclusions drawn from those facts are correct. Because
      the Commonwealth prevailed before the suppression court, we
      may consider only the evidence of the Commonwealth and so
      much of the evidence for the defense as remains uncontradicted
      when read in the context of the record as a whole. Where the
      suppression court’s factual findings are supported by the record,
      [we are] bound by [those] findings and may reverse only if the
      court’s legal conclusions are erroneous. Where the appeal of the
      determination of the suppression court turns on allegations of
      legal error, the suppression court’s legal conclusions are not
      binding on an appellate court, whose duty it is to determine if
      the suppression court properly applied the law to the facts. Thus,
      the conclusions of law of the courts below are subject to plenary
      review.

Commonwealth v. Jones, 121 A.3d 524, 526–27 (Pa. Super. 2015),

reargument denied (Sept. 30, 2015), appeal denied, 135 A.3d 584 (Pa.

2016) (ellipses and brackets omitted).




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       Bernal gave his first statement9 to police on April 29, 2014, shortly

after his arrest. Bernal claims that, at the time he gave that statement, he

was “drug sick,” experiencing opioid withdrawal.       Bernal argues that the

symptoms of withdrawal he was experiencing at the time were not “readily

visible to an observer without asking the person detailed questions.” Brief of

Appellant, at 16. Bernal claims that, because he informed officers that he

had last used heroin approximately four hours earlier, officers should have

waited to interrogate him until he was either treated for withdrawal or given

a chance to sober up. This claim is meritless.

       At the suppression hearing, four officers with experience interacting

with “drug sick” individuals – one of whom is a certified EMT – testified that,

on the night of his arrest, Bernal neither appeared sick, nor mentioned

feeling sick. The trial court found their testimony to be credible. Moreover,

Bernal presented no evidence to support his contention, and the suppression

court was “satisfied beyond peradventure that the April 29, 2014, statement

represented a voluntary act after a knowing waiver of Miranda rights.”

Suppression Court Opinion, 6/24/15, at 10.         We can find nothing in the

record that would lead us to disturb the court’s ruling.


____________________________________________


9
  We note that Bernal’s argument with regard to his first statement barely
conforms to the requirements set forth in the appellate rules. Bernal cites
but one case and only engages in the most basic analysis. However, we
decline to find waiver.



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      Finally, Bernal claims that the trial court erred in assigning an offense

gravity score (OGS) of ten to each count of PWID, when the evidence

presented at sentencing failed to established that he possessed between 50

and 100 grams of heroin in the time-frame underlying each count.           This

claim represents a challenge to the discretionary aspects of Bernal’s

sentence.   See Commonwealth v. Archer, 722 A.2d 203, 210-11 (Pa.

Super. 1998) (en banc) (claim regarding misapplication of the Sentencing

Guidelines constitutes a challenge to the discretionary aspects of sentence).

      A challenge to the discretionary aspects of a sentence does not entitle

an appellant to review as a matter of right.    Commonwealth v. Swope,

123 A.3d 333, 337 (Pa. Super. 2015). Rather, before this Court can address

such a claim, an appellant must comply with the following requirements:

      An appellant challenging the discretionary aspects of his
      sentence 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.

Id., quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.

2011).

      Here, Bernal filed a timely post-sentence motion raising his sentencing

claim, followed by a timely notice of appeal to this Court. He also raises a

substantial question.   See Archer, supra (improper calculation of OGS



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compromises fundamental norms which underlie sentencing process and

therefore raises substantial question). However, Bernal has failed to include

in his brief a concise statement of reasons relied upon for allowance of

appeal with respect to the discretionary aspects of his sentence pursuant to

Pa.R.A.P. 2119(f).10       The Commonwealth has objected to this omission.

Because Bernal has failed to include a Rule 2119(f) statement in his brief

and the Commonwealth has made proper objection to the omission, we are

precluded from addressing the merits of his challenge to the discretionary

aspects of his sentence.11        Commonwealth v. Minnich, 662 A.2d 21, 24

(Pa. Super. 1995), citing Commonwealth v. Birdseye, 637 A.2d 1036 (Pa.

Super. 1994).

        Judgment of sentence affirmed.




____________________________________________


10
     The requirement under Rule 2119(f) is as follows:

        An appellant who challenges the discretionary aspects of a
        sentence in a criminal matter shall set forth in a separate section
        of the brief a concise statement of the reasons relied upon for
        allowance of appeal with respect to the discretionary aspects of a
        sentence. The statement shall immediately precede the
        argument on the merits with respect to the discretionary aspects
        of the sentence.

Pa.R.A.P. 2119(f).

11
    Even if Bernal’s brief had included an Rule 2119(f) statement, we would
still find his claim waived, as his argument on this issue is devoid of citation
to authority in support of his claim. Veon, supra.



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     RANSOM, J., joins the memorandum.

     FITZGERALD, J., concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/2017




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