J-S22027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MICHAEL M. TIBURCIO

                            Appellant                 No. 1553 MDA 2016


              Appeal from the Judgment of Sentence August 9, 2016
                  In the Court of Common Pleas of Berks County
               Criminal Division at No(s): CP-06-CR-0004600-2015


BEFORE: SHOGAN, J., MOULTON, J., and PLATT, J.*

MEMORANDUM BY MOULTON, J.:                       FILED SEPTEMBER 19, 2017

       Michael M. Tiburcio appeals from the August 9, 2016 judgment of

sentence entered in the Berks County Court of Common Pleas following his

jury trial convictions for two counts of possession with intent to deliver a

controlled substance (“PWID”), two counts of possession of a controlled

substance, and two counts of criminal conspiracy to commit PWID.1         We

affirm.


____________________________________________


       *
           Retired Senior Judge assigned to the Superior Court.
       1
         35 P.S. §§ 780-113(a)(30), (a)(16), and 18 Pa.C.S. § 903,
respectively. The trial court determined that Tiburcio was eligible for the
Recidivism Risk Reduction Incentive (“RRRI”) program and sentenced him to
an aggregate term of 6 to 80 years’ incarceration, with an RRRI minimum of
4 1/2 years.
J-S22027-17



       On August 11, 2015, police arrested Karla Romig for facilitating drug

transactions     between     Tiburcio’s   brother,   Juan   Tiburcio   (“Juan”),    and

Detective Camilla Karns, who was working undercover at the time.                   N.T.,

8/1/16, at 110-11, 205.         Sergeant Todd Harris testified that he obtained

Romig’s consent to use her phone to contact Juan, and that, with Romig’s

assistance, he set up a meeting.          Id. at 208-14.    Detective Michael Rowe

testified that he observed a Toyota Camry arrive at the location of the

meeting.      Id. at 278-79.     The arrest team took Juan, who had exited the

passenger side of the vehicle, into custody. Id. at 214. Tiburcio, who was

driving the vehicle, id. at 235, was also taken into custody,             id. at 214.

During a pat-down of Tiburcio’s person, Detective Rowe recovered “41 small

clear plastic packets of crack cocaine, a larger chunk of bulk cocaine, and 1

packet of powder cocaine,” as well as $296 in cash.            Id. at 280, 290-91.

Detective Sergeant Pasquale Leporace gave Tiburcio Miranda2 warnings,

after which Tiburcio directed the officers to a small change drawer to the left

of the steering wheel, which contained 15 packets of heroin. Id. at 280-81.

A search of the vehicle further revealed a cell phone. Id. at 296.

       Detective George Taveras testified that while waiting to transport

Tiburcio, Tiburcio stated that “he was willing to cooperate with law

enforcement” and “that the reason he was doing this was to get by, that


____________________________________________


       2
           Miranda v. Arizona, 384 U.S. 436 (1966).



                                           -2-
J-S22027-17



times were tough.” Id. at 301. Tiburcio further stated “that this was a very

small amount, that he can do bigger things.” Id.

     Detective Leporace, testifying as an expert in drug trafficking and drug

packaging, offered his opinion that Tiburcio possessed the drugs with an

intent to deliver.   Id. at 319-20.    Detective Leporace arrived at this

conclusion after hearing all the evidence regarding the amount of drugs, the

form and packaging of the drugs, the presence of a cellphone, the amount of

cash found, and the lack of drug-use paraphernalia. Id. at 320-30.

     The trial court set forth the procedural history of this case in its

opinion, which we adopt and incorporate herein.         Memorandum Opinion,

11/29/16, at 1-2 (“1925(a) Op.”).

     On appeal, Tiburcio raises the following claims:

        A. Whether the evidence presented at trial was insufficient
           as a matter of law wherein the Commonwealth’s
           evidence presented at trial failed to establish that
           [Tiburcio] made any drug transactions and did not have
           any drug related conversations, did not possess the
           drugs related to any transactions, and there was
           insufficient testimony regarding any conspiracy[.]

        B. Whether the verdict was against the weight of the
           evidence wherein the verdict is so contrary to evidence
           and shocks one’s sense of justice where the
           Commonwealth’s evidence presented at [sic] failed to
           establish that [Tiburcio] made any drug transactions
           and did not have any drug related conversations, did
           not possess the drugs related to any transactions, and
           there was insufficient testimony regarding any
           conspiracy[.]

        C. Whether     the   court’s  sentence   was   illegal,
           unconstitutional and cruel and unusual wherein the


                                    -3-
J-S22027-17


            sentences were run consecutive and were unreasonably
            excessive[.]

Tiburcio’s Br. at 4-5 (full capitalization omitted).

      We apply the following standard when reviewing a sufficiency of the

evidence claim:

         [W]hether 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 weigh 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. Best, 120 A.3d 329, 341 (Pa.Super. 2015) (alterations

in original) (quoting Commonwealth v. Harden, 103 A.3d 107, 111

(Pa.Super. 2014)).

      The trial court addressed Tiburcio’s sufficiency claim in its opinion,

applied the relevant law, and found there was sufficient evidence to support

the convictions.     We agree with, and adopt, the trial court’s cogent

reasoning. See 1925(a) Op. at 2-7.


                                       -4-
J-S22027-17


     Next, Tiburcio recasts his sufficiency argument as a weight of the

evidence claim.   This court reviews a weight of the evidence claim for an

abuse of discretion.   Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa.

2013). “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[.]”   Id. (quoting Commonwealth v. Widmer,

744 A.2d 745, 753 (Pa. 2000)).       “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.” Id.

     The trial court addressed Tiburcio’s weight of the evidence claim,

applied the relevant law, and concluded that the verdict was not against the

weight of the evidence. We agree with, and adopt, the trial court’s cogent

reasoning. See 1925(a) Op. at 7-8.

     Finally, Tiburcio challenges the discretionary aspects of his sentence.

“Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super. 2011). Before we may address such a challenge, we first

determine:

        (1) whether the appeal is timely; (2) whether Appellant
        preserved his issue; (3) whether Appellant’s brief includes
        a concise statement of the reasons relied upon for
        allowance of appeal with respect to the discretionary

                                     -5-
J-S22027-17


         aspects of sentence; and (4) whether the concise
         statement raises a substantial question that the sentence
         is appropriate under the sentencing code.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)).

      Tiburcio filed a timely notice of appeal and preserved his claim in a

timely post-sentence motion. Tiburcio, however, failed to include in his brief

a concise statement of reasons relied upon for allowance of appeal pursuant

to Pennsylvania Rule of Appellate Procedure 2119(f).

      When the Commonwealth raises an objection to appellant’s failure to

include the Rule 2119(f) statement, as it did here, we are precluded from

addressing the merits of appellant’s challenge to the discretionary aspects of

sentencing.   See Commonwealth v. Griffin, 149 A.3d 349, 353-54

(Pa.Super. 2016); see also Commonwealth v. Minnich, 662 A.2d 21, 24

(Pa.Super. 1995). Accordingly, Tiburcio has waived his claim.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/2017




                                    -6-
