J-S28012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    FELIPE PETE RODRIGUEZ, III                 :
                                               :
                       Appellant               :   No. 1751 MDA 2017

          Appeal from the Judgment of Sentence November 23, 2016
     In the Court of Common Pleas of Lebanon County Criminal Division at
                       No(s): CP-38-CR-0001767-2015


BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:                                  FILED JUNE 29, 2018

       Appellant, Felipe Pete Rodriguez III, appeals from the judgment of

sentence entered on November 23, 2016, following his jury trial convictions

for possessing a controlled substance and possessing prohibited contraband

while confined.1 We affirm.

       The facts of the case, as summarized by the trial court, are as follows:

       On September 30, 2014, Corporal Daniel Waltz and Captain
       Michael Ott conducted a search of Room Number 16 at the
       Lebanon County Correctional Facility (“LCCF”). This room housed
       approximately fourteen inmates participating in work-release
       programs. During the search, four rolled cigarettes, suspected to
       contain synthetic marijuana; a lighter; and an egg-shaped
       cylinder filled with suspected tobacco were found in [Appellant’s]
       locked drawer. The drawer could only be accessed by [Appellant]
       and prison staff, because it was secured by a combination lock.
       Records show that [Appellant] purchased the combination lock at
       the LCCF commissary.
____________________________________________


1   35 P.S. § 780-113(a)(16) and 18 Pa.C.S.A. § 5123(a.2), respectively.
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       Forensic Scientist Dana R. Jackson at the Pennsylvania State
       Police Harrisburg Regional Laboratory analyzed the contraband
       The laboratory analysis concluded that the cigarettes filled with
       green vegetable material, weighed a total of 0.97 grams. In
       particular, one cigarette with the vegetable material weighed .20
       grams, and contained XR11, which is a Schedule I controlled
       substance and TJF-2201, a structural analog of the
       naphthoylindole class, also a Schedule I controlled substance. No
       controlled substances were detected in the egg-shaped vessel
       containing brown vegetable material.

       As a result of the laboratory findings, the Lebanon County District
       Attorney filed [a bill of] [c]riminal [i]nformation, which charged
       [Appellant] with the crimes of Contraband and Violation of the
       Controlled Substance, Drug, Device, and Cosmetic Act.

Trial Court Opinion, 3/23/17, at 2-3.

       On September 14, 2016, a jury found Appellant guilty of the

aforementioned charges. On November 23, 2016, the trial court sentenced

Appellant to 20 to 40 months of incarceration. Appellant filed a post-sentence

motion on November 29, 2016. Following granted extensions and the filing

of briefs in support of post-sentence motions, the trial court denied relief by

opinion and order entered on March 23, 2017. This timely appeal followed.2

       On appeal, Appellant presents the following issues for our review:




____________________________________________


2  Appellant filed a notice of appeal on March 28, 2017. On March 30, 2017,
the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa. R.A.P. 1925(b). Appellant complied
timely on March 31, 2017. On April 19, 2017, the trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a), relying upon its earlier opinion entered on
March 23, 2017.

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      [1.]   Whether [Appellant’s] motion for acquittal should [have]
             be[en] granted due to the Commonwealth’s failure to
             present sufficient evidence at trial?

      [2.]   Whether the jury’s verdict was against the weight of the
             evidence?


Appellant’s Brief at 4.

      Appellant alleges first that the evidence is not sufficient to sustain both

of his convictions. Specifically, Appellant alleges:

      […T]he Commonwealth’s witness presented conflicting stories and
      the conflicting stories created reasonable doubt about the
      elements of the contraband specifically the possession.
      [Appellant] denied he used the lockbox where the contraband was
      found, he wasn’t present when the items were found, he plead[ed]
      not guilty at the disciplinary board hearing, the item was never
      fingerprinted and he denied the possession [to prison authorities].
      Additionally, there was no testimony that the lock he purchased
      at the commissary was specifically the lock found by the officers
      on his “assigned” drawer. Instead, the testimony established that
      a common key opened all the locks. Which further supports
      [Appellant’s] position that the Commonwealth failed to establish
      its burden.

Appellant’s Brief at 10-11 (record citations omitted).

      When determining the sufficiency of the evidence, “[t]he applicable

standard of review is whether, viewing all the evidence in the light most

favorable to the Commonwealth as verdict winner, together with all

reasonable inferences favorable to the Commonwealth, a jury could find every

element of the crime beyond a reasonable doubt.”           Commonwealth v.

Brown, 648 A.2d 1177, 1180 (Pa. 1994) citing Commonwealth v. Kichline,

361 A.2d 282, 285-286 (Pa. 1976); see also Commonwealth v. Diggs, 949



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A.2d 873, 877 (Pa. 2008).      In applying this standard, the reviewing court

must bear in mind that:

      the    Commonwealth        may sustain its burden by      means    of
      wholly circumstantial evidence; the entire trial record should be
      evaluated and all evidence received considered, whether or not
      the trial court's ruling thereon were correct; and the trier of fact,
      while passing upon the credibility of witnesses and the weight of
      the proof, is free to believe all, part, or none of the evidence.

Commonwealth v. Hutchinson, 947 A.2d 800, 807 (Pa. Super. 2008)

(citation omitted).

      Possessing a controlled substance is defined as “[k]nowingly or

intentionally possessing a controlled or counterfeit substance by a person not

registered under [the Controlled Substances Act.]” 35 P.S. § 780-113(a)(16).

Possessing prohibited contraband while confined is defined as follows: “[a]

prisoner or inmate commits a felony of the second degree if he unlawfully has

in his possession or under his control any controlled substance in violation of

[35 P.S. § 780–113(a)(16) ].” 18 Pa.C.S. § 5123(a.2). “This Court has held

that the intent of the legislature in subsection 5123(a.2) is the prevention of

inmates obtaining any controlled substance in any amount whatsoever; in

other words, the contraband statute seeks absolute abstinence by inmates.”

Commonwealth v. Cornelius, 180 A.3d 1256, 1260 (Pa. Super. 2018)

(internal citation omitted).

      We have stated:

      [T]he Commonwealth is not required to show actual
      physical possession of the drugs.     Constructive possession is
      sufficient, which is an inference arising from a set of facts

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      that possession of the contraband was more likely than not. We
      have defined constructive possession as conscious dominion. We
      subsequently defined conscious dominion as the power to control
      the contraband and the intent to exercise that control. To aid
      application, we have held that constructive possession may be
      established by the totality of the circumstances.

Commonwealth v. Katona, 2018 WL 2986892, at *3 (Pa. Super. 2018)

(internal citations and quotations omitted).

      In this case, Appellant does not present the conflicting testimony in the

light most favorable to the Commonwealth as we are required to do. When

applying the proper standard of review, there was more than sufficient

evidence for a jury to find that Appellant was in constructive possession of

contraband. Corporal Daniel Waltz testified that the contraband was found

alongside legal paperwork bearing Appellant’s name in a lock-box underneath

Appellant’s bed. Trial Court Opinion, 3/23/17, at 9. Ms. Charlene Simaska

testified that Appellant purchased a combination lock which was the same kind

found on Appellant’s lock-box. Id. at 9-10. Captain Michael Ott testified that

Appellant had the opportunity to present his case to the prison Disciplinary

Board, which found him guilty. Id. at 10-11. Viewed in a light most favorable

to the Commonwealth, it is reasonable for the trier of fact to infer that the

contraband was Appellant’s. The evidence presented was sufficient to prove

the elements of both offenses beyond a reasonable doubt.

      In his second issue presented, Appellant argues that he is entitled to a

new trial because the verdict was against the weight of the evidence.

Specifically, Appellant asserts that, “the jury should have afforded his

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statements to [prison officials] more weight and credibility.” Appellant’s Brief

at 9.

        We adhere to the following standard:

        A motion for a new trial based on a claim 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. 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.
        It has often been stated that a new trial should be awarded when
        the jury's verdict is so contrary to the evidence as to shock one's
        sense of justice and the award of a new trial is imperative so that
        right may be given another opportunity to prevail.

        An appellate court's standard of review when presented with
        a weight of the evidence claim is distinct from the standard
        of review applied by the trial court:

              Appellate review of a weight claim is a review of the
              exercise of discretion, not of the underlying question
              of whether the verdict is against the weight of
              the evidence. Because the trial judge has had the
              opportunity to hear and see the evidence presented,
              an appellate court will give the gravest consideration
              to the findings and reasons advanced by the trial
              judge when reviewing a trial court's determination
              that    the    verdict   is    against   the weight of
              the evidence. One of the least assailable reasons for
              granting or denying a new trial is the lower court's
              conviction that the verdict was or was not against
              the weight of the evidence and that a new trial should
              be granted in the interest of justice.

        This does not mean that the exercise of discretion by the trial
        court in granting or denying a motion for a new trial based on a
        challenge to the weight of the evidence is unfettered.          In
        describing the limits of a trial court's discretion, [our Supreme
        Court has] explained:


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            The term discretion imports the exercise of judgment,
            wisdom and skill so as to reach a dispassionate
            conclusion within the framework of the law, and is not
            exercised for the purpose of giving effect to the will of
            the judge. Discretion must be exercised on the
            foundation of reason, as opposed to prejudice,
            personal     motivations,    caprice    or     arbitrary
            actions. Discretion is abused where the course
            pursued represents not merely an error of judgment,
            but where the judgment is manifestly unreasonable or
            where the law is not applied or where the record
            shows that the action is a result of partiality,
            prejudice, bias or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1054–1055 (Pa. 2013) (internal

citations and quotations omitted).

      In this case, the trial court reasoned that there was ample evidence for

the jury to find Appellant guilty.      Trial Court Opinion, 3/23/17, at 13.

Considering the entire record and evidence presented at trial, we find no abuse

of discretion. The aforementioned evidence presented at trial gave the jury a

basis to find Appellant guilty beyond a reasonable doubt and this Court will

not substitute its own judgment for that decision. Moreover, the verdict does

not shock one’s sense of justice. As such, we discern no abuse of discretion

in ruling on Appellant’s weight of the evidence claim. For all of the foregoing

reasons, Appellant is not entitled to relief.




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     Judgment of sentence affirmed.


         Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/29/2018




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